International Environmental Impact Assessment: A Case Study in Implementation

Julie Teel

Julie Teel is a fonner Law Fellow with the Environmental Law Institute (ELI). She received a B.S. in Conservation and Resource Studies from the University of California at Berkeley and a J.D. from New York University School of Law. This paper was prepared by ELI under a cooperative agreement with the U.S. Environmental Protection Agency. ELI Senior Attorney Jay Austin supervised completion of the report. Additional comments, suggestions, and research were provided by ELI Senior Attorneys Carl Bruch. Susan Casey-Lefkowitz, and Brian Rohan. Special thanks to Charlie Brasher, Jerzy Jendroska, Dmytro Skrylnikov, and Volodymyr Tykhyy for their review and comments.

[31 ELR 10291]

This paper aims to facilitate discussion about specific reform proposals for Ukraine by illustrating the basic components of environmental impact assessment (EIA) with comparative analysis and recent developments from other countries' legislation and international law. Section I introduces EIA, provides a general overview of Ukrainian ecological expertiza law, and describes U.S. Environmental Protection Agency (EPA) Region V's EIA pilot project in Ukraine. Section I begins by discussing the stages of the EIA process, from the early "screening" stage to final decision on the activity, while analyzing the current state of Ukrainian law with respect to these stages and comparing it to other approaches. It closes by examining different methods of ensuring post-decision review and enforcement. Sections II and III address recent developments in EIA law, including EIA in a transboundary context; the application of EIA to plans, policies, and programs; the regionalization of EIA laws; and EIA as a condition for project approval by international financial institutions and development aid agencies. Section IV summarizes our findings and illustrates general areas for reform for Ukrainian EIA law.

I. EIA Overview

A. EIA Concepts

EIA reflects a preventive approach to environmental management and development planning, and is widely accepted as a crucial early stage for public involvement in the decisionmaking process. Properly implemented, EIA can be an effective tool for identifying, evaluating, and minimizing the adverse environmental consequences of human activities. By incorporating environmental planning into the earliest stages of development projects, before financial and design commitments have solidified, changes can be made more readily in order to ensure that the project proceeds in an environmentally sound manner. A critical element of early planning is public disclosure about activities affecting the environment and public involvement in all stages of the EIA process. With strong public participation, there is a greater likelihood that well-informed decisions—decisions based on consideration of the environmental consequences of the proposed activity and reasonable alternatives to it—will be made.

Since the enactment of the first EIA law, the U.S. National Environmental Policy Act (NEPA),¹ in 1969, EIA has emerged as an important aspect of many countries' environmental laws, as well as international law. Although there are many different approaches, most environmental legislation worldwide now incorporates EIA concepts. Most EIA laws consist of an overarching environmental policy statement followed by "action-forcing" procedures designed to advance this policy goal. These procedures aim to integrate the stated environmental policy into the planning and development activity of government agencies and private actors, and often include the preparation of formal documentation. In some cases, the requirement may be for a single document called an environmental impact statement (EIS).

Not only do EIA laws further national environmental policies, but they also have become a prerequisite for building relationships with other countries and securing economic support. The United Nations Economic Commission for Europe (UNECE) and the European Commission each have addressed EIA in recent conventions² and a recent directive,³ respectively. In addition, multilateral lending agencies, such as the World Bank, recently have developed guidelines expressing the importance of environmental assessment to their project planning and approval processes.⁴ Effective EIA laws can encourage foreign investment and facilitate privatization by requiring early investigation of environmental considerations, thereby reducing the liability risks associated with environmental investments.

While something like an EIS is a component of most EIA laws, the concept of EIA generally is much broader than the mere preparation of an EIS or similar documentation and can take many forms. In the environmental review procedures of many countries, EIA is largely a technical aid in the project approval process. For other countries, such as the United States and European Union (EU) member states, EIA is a multifaceted tool for managing development planning, [31 ELR 10292] which often emphasizes public participation, disclosure of information, and other process-oriented provisions.

B. General Overview of Ukrainian Ecological Expertiza Law

The existing Ukrainian system of environmental review, or ecological expertiza, has its origins in the regulatory concepts of the former Soviet Union. Until the late 1980s, approval of most economic activity in the Soviet Union was governed by economic-oriented legislation that required some consideration of environmental factors in the decisionmaking process. For example, proposed projects and their planning documentation theoretically had to comply with environmental standards. Some activities also had to receive authorization from various state environmental protection bodies. In addition, proposed activities were reviewed by special expert committees, known as expertizas, affiliated with various state bodies, ministries, and regional authorities. According to the law, a project could not proceed without a positive conclusion from the expertiza about the project's environmental and other impacts.

The expertiza process included a requirement that project documentation include a section describing proposed measures to protect the environment in order to provide some structure to the expertiza's environmental review. However, weaknesses in the system were evident. The review was based on limited information about the project, focused almost entirely on compliance with existing environmental standards, and did not provide for public consultation and participation.

In the late 1980s, the State Committee on Nature Protection (Goskompriroda), which later became the Ministry of Environment, was authorized by decree to conduct state environmental reviews (SERs), also known as ecological expertizas, of projects, plans, programs, and new materials and technology. The decree also appointed a specific body within the Goskompriroda to develop and manage the SER system. The SER approach further integrated environmental considerations into the decisionmaking process by more clearly conditioning final project approval and permitting upon the receipt of a positive conclusion from the SER department.

However, there still were several weaknesses with the SER approach. EIA generally consists of the following stages: screening to determine if an EIA applies; scoping to plan the EIA process; preparation of the EIA documentation, including an evaluation of impacts, alternatives, and mitigation measures; public review of the documentation and participation at various stages in the EIA; and a final decision on the activity by the competent authority. Experts analyzing the SER system have since found that the role and influence were largely limited to checking compliance with existing environmental regulations. This hampered the SER's ability to address cumulative, synergistic, and often uncertain impacts of large projects. A critical fault with the SER is that it neither incorporated impact assessment and mitigation measures early enough in the planning stages of a project nor adequately provided for public participation in the decisionmaking procedures.⁵

In 1988, in response to these weaknesses in the SER approach, assessment of environmental impacts, known as OVOS, was officially introduced by decree of the Communist party of the Soviet Union and the Council of Ministers.⁶ OVOS is a separately defined review that became a required piece of the proposed activity's documentation. Although OVOS attempted to establish a broader process of environmental impact identification and assessment that incorporated general EIA principles, its greatest weakness was the lack of practical application of these principles. In practice, OVOS did not have the level of influence on environmental planning that might have been hoped, due in part to a lack of training, guidance, and detailed procedural requirements that are needed to successfully execute the OVOS requirements.⁷ Because of these limitations, OVOS more closely resembled a mere EIS document than a full EIA process like that required by NEPA.

At the time of the dissolution of the Soviet Union, some steps were being taken to incorporate missing EIA elements, such as public participation, into Soviet law. The Soviet Union's signing of the UNECE Convention on EIA in a Transboundary Context (Espoo Convention) in 1991 was a catalyst for the reassessment of Soviet environmental review provisions.

Since declaring independence from the former Soviet Union on August 24, 1991, Ukraine has established its own system of environmental laws. Environmental review and impact assessment of existing and proposed activities in Ukraine are governed by its state ecological expertiza procedure. The 1991 Law on Environmental Protection established the framework for this procedure. While largely declaratory, the legislation provides for the execution of state ecological expertizas and EIA documentation for both planned and existing activities that impact the environment.⁸ Although the Cabinet of Ministers of Ukraine, the Crimean government, the local legislative bodies known as Radas, local executive bodies, institutions of the Ministry of Health, and other state executive bodies are to participate in Ukraine's state ecological expertiza system,⁹ primary responsibility for the organization and execution of these expertizas fell until recently to the Ministry of Environmental Protection and Nuclear Safety (MEPNS), its local agencies, and their subdivisions.¹⁰ In certain cases, other institutions, experts, organizations, and individuals were permitted to participate.¹¹ In December 1999, the MEPNS was merged with six other governmental agencies and renamed the Ministry of Ecology and Natural Resources [31 ELR 10293] (MENR).¹² Despite this recent reorganization, the following discussion of Ukrainian expertiza law will continue to refer to the MEPNS.

The ecological expertiza is just one of many kinds of expertiza conducted to assess the compliance of economic activities with Ukrainian laws and regulations.¹³ In addition to state ecological expertizas, the law also authorizes public organizations, independent specialists, and local governments to conduct public ecological expertizas on their own initiative. If drafted, the conclusions of public expertizas serve as recommendations to the agency conducting the state ecological expertiza and to those submitting the proposal.¹⁴ Further, Article 9 of the Law on Environmental Protection confers the right on the citizens of Ukraine to take part in discussions about, and to submit comments on, draft legislation and materials relating to the siting, construction, or modification of objects that might negatively affect the environment.

The role of EIA was further defined by the 1995 Law on Ecological Expertiza. The Law on Ecological Expertiza declares that state ecological expertizas are mandatory for "activities and facilities posing an increased ecological hazard," as defined by the Cabinet of Ministers of Ukraine in a List of Activities and Objects Which Constitute an Increased Ecological Hazard.¹⁵ This list was compiled and approved soon after the Law on Ecological Expertiza was enacted. For these activities and objects, the law directs the ecological expertiza to define the degree of environmental risk and safety of a planned or current "object" of ecological expertiza; to conduct comprehensive scientifically-based assessments of the objects and their impacts on environmental conditions and public health¹⁶; to ensure compliance of expertiza objects with environmental, public health and building standards and regulations; to evaluate the sufficiency of environmental and public health measures; and to prepare unbiased, well-founded conclusions.¹⁷ The conclusions are based in large part on "EIA documentation" submitted to the ecological expertiza by the proponent of an activity or project addressing its environmental and other impacts.¹⁸

After being approved by the MEPNS, the conclusions of the executors of the state ecological expertizas¹⁹ are "binding for execution." Positive conclusions constitute the basis for granting financing for programs and projects. The implementation of programs and projects without a positive conclusion of the state ecological expertiza is prohibited.²⁰

Two additional legal sources define in greater detail the information that the EIA documentation must provide. The first of these is the MEPNS Regulation on the Form and Content of Materials for Assessing the Impact of Planned Economic Activity on the Environment and Natural Resources (EIA) During Various Stages of New Construction, Reconstruction, or Technical Upgrading of Working Industrial and Other Objects.²¹ This regulation requires that a general EIA be conducted for all local and regional plans. The second source is the Derzhavni budlivelni normy (State Construction Standards).²²

The State Construction Standards set out detailed requirements for EIA documentation called Ostinka vplyvu na navkolyshnie seredovyshche (OVNS), which addresses activities and projects on the List of Activities and Objects Which Constitute an Increased Ecological Hazard. They specify the procedures that the project proponent must follow and the form and content of the EIA documentation that the proponent must submit to the state ecological expertiza. These and the other procedures required by Ukrainian law are discussed in detail Section II, below.

C. EPA Pilot Project inUkraine

The Ukrainian ecological expertiza process, like the EIA process common in western countries, is intended to evaluate the potential environmental impacts of development projects and thereby facilitate the planning process. But while elements of EIA are present in the current Ukrainian system of state ecological expertiza, the environmental assessment and decisionmaking portions are still considered a technical exercise, largely undertaken by experts without public input or participation. Despite the provisions of Ukraine's environmental laws, public hearings and environmental impact assessments rarely occur in practice.²³

To demonstrate how internationally recognized EIA procedures might be effectively implemented in Ukraine to the benefit of business development, local communities, and the environment, EPA Region V is currently engaged in an EIA demonstration project in Ukraine. A western-style EIS was prepared to evaluate the proposed development and expansion of oil and gas production at the Pasichna oil field in western Ukraine. The objective of the demonstration project is to highlight key components of the EIA process, while still complying with Ukrainian law. Some of the key components are: (1) an open and transparent EIA process; [31 ELR 10294] (2) early stage alternatives analysis; (3) public involvement throughout the entire decisionmaking process; and (4) decisions based on sound science.²⁴

To achieve these objectives, EPA is working in cooperation with several local, regional, and national organizations, including the MEPNS, the Ivano-Frankivsk State Technical University of Oil and Gas, Ivano-Frankivsk Oblast, Ukranafta, Nadvirna Oil and Gas Enterprise, Nadvirna Rayon, the Society for Nature Protection, Eco-Pravo, the Institute of Democracy, and the villages of Pasichna, Bitkiv, and Pniv. The EIA demonstration project is a cooperative effort of EPA and the United Nations Development Project (UNDP) with funding provided by the U.S. Agency for International Development (USAID).

EPA experts provided technical assistance on various aspects of the EIA process, including: collection and analysis of background environmental information, alternatives analysis, and public participation. EPA also formed a steering committee of Ukrainian decisionmakers to provide direction and oversight for the demonstration project. The committee consists of representatives from the MEPNS, Ukranafta, Nadvirna Oil and Gas Enterprise, and the Rayon Council.

Several "scoping" meetings were held to stimulate public participation in the EIA demonstration project. Scoping is the term applied to the process of determining the impacts and issues to be addressed in the EIA. In addition, public involvement was encouraged through the formation of a public advisory council and the establishment of four information repositories in the project area. The information repositories provided citizens with EIA project information and allowed them to express concerns and ask questions. Public input was explicitly considered during development of the draft and final EIAs.

Subsequently, a public hearing took place in the project area on September 28, 1999, and the project team discussed the results of the draft EIA and provided the public with an opportunity to comment on the draft. An additional public hearing was held on December 9, 1999, to discuss the final EIA, which will be submitted for review to the state ecological expertiza.

A roundtable discussion on Ukrainian EIA laws took place on March 15, 2000. The round table convened Ukrainian governmental officials, nongovernmental organizations (NGOs), donor agencies, and EPA representatives to discuss the EIA demonstration project, lessons learned, potential next steps as well as possible revisions to Ukrainian EIA laws.

II. Key Elements of Internationally Recognized EIA

A. The EIA Process

1. Screening: When Does EIA Apply?

A threshold issue of EIA law is determining precisely what types of activities are required to go through the impact assessment process. EIA legislation or regulations may define the scope of the process based on the nature of the project proponent (private, government, or both) or the timing of the activity (future activities, existing activities, or both); for example, Polish EIA law covers existing as well as future activities.²⁵ Beyond these initial distinctions, there are two main approaches to screening activities to determine those that trigger the EIA requirement: categorical and discretionary screening. Although different, these approaches are not mutually exclusive, and often are found combined in a single law or regulation.

Categorical screening refers to the process of compiling a list of activities—often annexed to the law itself—that are covered by the process, and using this list as the determinant of whether the EIA requirement applies. Discretionary screening usually involves assessing each activity on a case-by-case basis to determine its "significance," or likelihood to cause environmental impacts of the kind or degree that the laws are intended to prevent. Such a significance determination usually requires looking at multiple factors, including project size, location, immediate impacts, long-term effects, indirect impacts, and cumulative impacts on the environment. Combining the categorical and discretionary approaches means that the law applies automatically to a specified list of activities, and also requires that other kinds of activities be considered for the significance of their potential impacts.

In addition to determining what projects will be subject to EIA, an important issue at the screening stage is whether the screening decision is made with public input and is subject to public comment and/or formal review.Ukraine and some other countries do not require any public consultation at the screening stage of the EIA process. Other countries require that the public be notified of the decision whether or not to conduct an EIA and be given an opportunity to respond to it. An innovative variation on the normal screening procedure was implemented by Bulgaria's Environmental Protection Act,²⁶ which authorizes concerned natural or legal persons not merely to react to screening decisions, but also to proactively submit EIA proposals for activities that they believe should be covered by the process. While this opportunity for public initiation of the EIA process is authorized by the statute, its effectiveness depends upon its actual use.²⁷

Ukrainian law employs both categorical and discretionary screening to determine the governmental and private activities that are subject to ecological expertiza and its accompanying EIA documentation requirements. While the Law of Ukraine on Environmental Protection states that ecological expertizas "are mandatory while conducting legislative, investment, management, economic, and other activities [31 ELR 10295] which impact the environment,"²⁸ the Law on Ecological Expertiza provides that state ecological expertizas are mandatory for a specified set of projects and activities. However, even the latter law contains discretionary language that appears to require case-by-case consideration of many different kinds of activities.

Under the Law on Ecological Expertiza, state ecological expertizas are mandatory for activities and facilities of "increased environmental hazard."²⁹ These activities and facilities are further delineated in the List of Activities and Objects Which Constitute an Increased Ecological Hazard, and range from atomic energy production and petroleum extraction to the construction of sewage systems and food production. The discretionary component is found at the end of the list, which includes a broad category encompassing "other objects, the construction and operation of which may negatively affect the state of the environment, and which are specified on a case-by-case basis by the [MEPNS] or its local bodies."³⁰ In addition, as a party to the Espoo Convention, Ukraine is subject to its requirements (see text accompanying footnotes 36 to 38).³¹

Many European countries similarly have combined the categorical and discretionary approaches to screening. For example, EU member states must comply with the EU Directive on EIA,³² which expressly applies to both public and private projects and which mandates that projects likely to have significant effects on the environment by virtue of their nature, size, or location may not be granted consent until an assessment of their environmental effects is completed.³³ Member states must conduct mandatory EIAs for all the projects listed in Annex I of the EU Directive.³⁴ Further, for projects on a more extensive list in Annex II of the EU Directive, member states are directed either to make a case-specific determination or to adopt and apply a number of criteria and thresholds to determine whether or not to conduct an EIA.³⁵ In either case, the determination whether to conduct an EIA must be made available to the public.³⁶ However, the responsibility for working out methods and timetables for information provision and consultation with the public is left to the individual member states.³⁷

The Espoo Convention also requires parties to consider transboundary environmental impacts when determining whether or not an EIA is required. Ukraine, which has ratified the Espoo Convention, and other parties to the convention are obligated to undertake an EIA before authorizing an activity that is likely to cause a significant transboundary impact. Transboundary impact is defined as "any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part with the area under the jurisdiction of another Party."³⁸ The Espoo Convention combines both a categorical list and a discretionary descriptive approach to screening.³⁹ Those activities not specifically listed as requiring an EIA are still subject to EIA if they are "likely to cause a significant adverse transboundary impact."⁴⁰

Although there will always be an element of subjectivity in a significance determination, the Espoo Convention provides some guidance on this undertaking. It cites three factors as particularly important: (1) the size of the activity relative to others of the same type; (2) the location of the activity—in particular, whether it is sited near an area of special environmental sensitivity or significance, or where it would be likely to significantly affect the population; and (3) the particularly complex and potentially adverse effects of the activity.⁴¹ Further, a 1996 report of the Espoo Convention Secretariat proposed tentative criteria for the determination of significance. Under these criteria, if the expected impacts of an activity in the affected country meet any of the following tests, the activity should always be considered significant: if its magnitude exceeds environmental objectives or safety and health standards; if it leads to an adverse change in a protected area; if it is virtually irreversible; or if potential impacts from accidents related to the project meet any of the above criteria.⁴²

A few countries in central and eastern Europe (CEE) have adhered to a purely categorical screening approach. Some, such as Slovakia and Hungary, have EIA processes that also incorporate discretionary screening by conducting initial environmental assessments to determine a project's significance, but there is little or no direct public participation in the process and no opportunity to appeal a screening decision.⁴³ In contrast, the Czech Republic has expanded the coverage of its EIA laws with an interesting addition to the standard categorical list of projects that require EIA before approval. There, activities not normally subject to EIA are still covered if they are sited in protected areas. Since almost one-third of the Czech Republic is designated as protected area, this provision has a substantial impact. If protected areas are involved, it also triggers the application of the Act on Nature Conservation and Landscape Protection, a Czech Republic law that guarantees public access to environmental information and public participation.⁴⁴

A few countries have EIA legislation that primarily adopts the discretionary approach to screening. For example, NEPA requires the federal government agency responsible for a project to prepare an EIS for "major federal actions [31 ELR 10296] significantly affecting the quality of the human environment."⁴⁵ A "major federal action" encompasses more than projects that are directly proposed by an agency of the federal government. Projects partially financed, regulated, assisted, or approved by a federal agency are also covered by NEPA's requirements. Thus, in practice, almost any economic activity large enough to require the attention of federal regulators may fall under NEPA and require an EIS. In addition, many of the 50 state governments have adopted their own EIA laws, or "little NEPAs," which may apply directly to private activities and have significance thresholds lower than the federal NEPA.

With respect to federal actions, NEPA's threshold determination has been further defined by the Council on Environmental Quality (CEQ), and narrowed to a single question of "significance."⁴⁶ CEQ regulations, which often are supplemented by regulations from individual federal agencies,⁴⁷ detail the process for determining whether an action is significant and therefore requires a federal EIS. Many different inquiries factor into a significance determination, including the proposed activity's proximity to historic resources or particularly sensitive ecological areas, such as wetlands.

In addition, under the CEQ regulations, the cumulative impacts of an activity must be considered during screening, which means determining "whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts."⁴⁸ This important regulation attempts to address the tactic of "segmentation," where a project is divided into several smaller parts to circumvent the need for an EIS. This practice was especially prevalent in the funding of federal highways, where the U.S. Department of Transportation would fund small segments of the highway and consider them independently from the entire highway project.⁴⁹ For the most part, U.S. federal courts have disallowed this practice unless the agency can demonstrate that a segment has independent utility separate from the larger project.⁵⁰

NEPA regulations confer on agencies the authority to simplify the screening procedure by identifying categories of actions that typically require an EIS and those that typically do not.⁵¹ The latter are termed "categorical exclusions," and are presumed to be exempt from the EIS requirement.⁵² If an action does not fall under either category, the federal agency will then prepare an environmental assessment (EA) in order to ascertain whether there is a need for a full EIS.⁵³ In essence, the EA is a short-form EIS that serves as the basis for the screening decision. If the EA concludes that a project is likely to have significant environmental impacts of the kind contemplated by NEPA, then the agency will go forward with a full EIS; if the EA concludes that there will not be significant impacts, the agency must prepare a document known as a "finding of no significant impact" (FONSI).⁵⁴ The FONSI document is a procedural safeguard to ensure that the agency conducted the EA properly, adequately evaluated potential environmental impacts, and made sufficient investigations before deciding not to conduct a full EIS.⁵⁵

2. Scoping: Planning the EIA Process

If the screening process determines that a full EIA procedure is required, it next becomes essential to define the scope of the EIA study or studies. "Scoping," or early identification of the issues and impacts that an EIA must assess, can facilitate early recognition of project alternatives and needed project modifications. In addition, setting priorities and identifying concerns early in the process can be especially important where financial and other resources for EIA are limited. The scoping stage results in a detailed outline of the content to be covered in the EIS, typically after a public hearing or other form of public consultation.

Under Ukrainian law, scoping is limited to the legal requirement that all environmental impact documentation address a list of topics.⁵⁶ This requirement is not tailored to specific projects, and no provision is made for scoping meetings involving the public, the project proponent, and relevant government authorities.⁵⁷ Instead, the project proponent designates a contractor to perform the EIA for the project. Together, they develop an outline to guide them in development of the EIA documentation.⁵⁸ The outline must include the "justified scope" of work relating to the environmental impacts of the activity.⁵⁹

The scoping process in Ukraine could benefit from public involvement. Not only can public input provide first-hand knowledge of local conditions and resources, it can also ensure that impacts of serious concern are adequately considered. Conversely, through public participation, decisionmakers may learn of the issues that are not of concern to the public, and thus save time and resources that might have been wasted investigating uncontroversial issues. Currently, EIA laws in former Soviet countries, including Ukraine, neglect to include public participation in scoping. This lack of public involvement seriously undermines objective consideration of the full range of impacts.

[31 ELR 10297]

Similarly, in other countries in central and eastern Europe, the scoping decision is often left to the project proponent and, in rare cases of "good voluntary practice," also to the administration responsible for the particular EIA process.⁶⁰ This scoping practice naturally does not provide much opportunity for public participation.⁶¹ In the EU, scoping is only slightly more participatory. The EU Directive's scoping provision only requires member states to ensure that at the scoping stage, the competent government authority has the discretion to give an opinion, subject to modification, as to the information to be supplied in the EIA.⁶² However, member states are left to decide whether to make the issuance of an opinion a mandatory requirement, or merely to allow the issuance of an opinion in response to a proponent's request for one.⁶³

[] Inviting Public Comment on Scoping Decision. The general absence of public participation in scoping is regarded as the weakest point of many EIA systems.⁶⁴ In many countries, this weakness has been recognized, and new laws are incorporating provisions to remedy the problem. For example, Slovakia addressed this need in its 1994 EIA Act, which requires proponents to conduct an initial environmental review for any project on the Act's extensive list of projects requiring EIA. The result of this review is a "plan" that is subject to public inspection for three weeks. Public comments then are used to make the screening and scoping decisions. The scoping decision that results must supply information on the impacts that will be studied, alternatives that will be evaluated in greater detail, interdependent activities that will be jointly assessed, and the timetable for the EIA process.⁶⁵

U.S. law also provides for public participation at the scoping phase. Under NEPA, after screening but before scoping, the agency responsible for the project must publish a "notice of intent" in the Federal Register.⁶⁶ This serves to notify the public that the agency intends to prepare an EIS and invites public participation. In this way, the public is encouraged to participate in the scoping process and to provide critical input on issues including impacts, alternatives, and mitigation possibilities.

[] Issuance of Scoping Guidelines With Public Input. The Dutch Environmental Management Act illustrates a different approach to including the public in the scoping process. It requires the competent authority to issue scoping guidelines to the proponent. In drafting these guidelines, the competent authority must allow the Committee for Environmental Impact Assessment nine weeks to make recommendations for the scoping guidelines.⁶⁷ During this period, any other person who wishes to submit comments on the guidelines may do so. The competent authority then has 13 to 21 weeks from the date that the notice of intent to draft guidelines was published to issue the scoping guidelines, which must then be circulated to the proponent and commenters.⁶⁸

[] Early Notification of the Public. Early notification of the public is a theme that is increasingly being emphasized in international agreements. For example, the UNECE Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (Aarhus Convention)⁶⁹ sets out requirements for the access to and dissemination of environmental information and for the inclusion of public participation in decisions on specific activities.⁷⁰ Although the Aarhus Convention is not yet in force, Ukraine has ratified the convention and should be working to ensure the consistency of its national law with Aarhus provisions. Under the Aarhus Convention, activities covered by the public participation provisions and activities that may have a "significant effect" on the environment are listed in Annex 1, which is arranged by industry.⁷¹ For these activities, the concerned public must be informed individually or by public notice "early in an environmental decisionmaking procedure, and in an adequate, timely, and effective manner"⁷² of the proposed activity, the nature of possible or draft decisions, and the general decisionmaking procedures that will be followed.

Under the Aarhus Convention, for public notice to be complete, the public must be informed of several components of the "envisaged" procedure as this information becomes available. These components include: the commencement of the procedure; the opportunities for the public to participate; the time and venue of any envisaged public hearing; an indication of the public authority from which relevant information can be obtained and where it can be examined; an indication of where comments and questions can be submitted and the time schedule for the transmittal of comments or questions; an indication of what environmental information relevant to the proposed activity is available; and if relevant, the fact that the activity is subject to a national or transboundary environmental impact procedure.⁷³

Although specific time frames are not delineated, Article 6 of the Aarhus Convention specifies that the public participation procedures must include "reasonable" time-frames for the different phases so that sufficient time exists for informing the public in order to enable those who wish to participate to sufficiently prepare and effectively participate. To this end, relevant information must be made available to [31 ELR 10298] the public "as soon as it becomes available."⁷⁴ The relevant information must at a minimum provide descriptions of the site and activity; descriptions of significant environmental effects and envisaged mitigation measures; a nontechnical summary of this information; an outline of the main alternatives studied by the proponent; and, in accordance with national legislation, the main reports and advice issued to the public authority.

[] Tiering. For complex projects, some EIA laws, such as those in Poland and the United States, authorize a multi-step approach, often called "tiering," that allows for EIAs at the various stages of a project to differ in terms of scope and detail. In the United States, tiering generally refers to the preparation of an initial EIS for a large-scale proposal and subsequent EISs for specific components of the proposal. In Poland, on the other hand, tiering can apply even within an individual project proposal. Polish EIAs for changes in existing land use plans, development consents, construction permits, and evaluations of existing facilities all vary in their required level of detail and complexity, with later EIAs including more complex investigation and documentation than the earlier ones.⁷⁵ In general, the Polish tiering system does effectively address differences in project characteristics, such as size or location, and as a result, the documentation may not reflect the most important issues of a particular project.⁷⁶ Although tiering can provide a more systemic and early-stage look at a proposed project, the Polish tiering method has been criticized as making EIS preparation too costly and time-consuming, resulting in either an early-stage EIA based on insufficient information or a late-stage EIA that contains too much information.⁷⁷

3. Experts, Environmental Agencies, and Proponents: Who Is Responsible for the Preparation of the EIS/EIA Documentation?

Another legal issue is who prepares or commissions the EIA documentation or EIS. Under Ukrainian law, as under the EU Directive on EIA and NEPA, the project proponent is responsible for the costs associated with EIA documentation. Given the inherent conflict of interest, the objectivity and reliability of the resulting assessment is often questioned.⁷⁸ However, there may be certain advantages to requiring the proponent to prepare the EIS. For example, a proponent may be best situated in general to bear the cost of the EIA by gathering, analyzing, and disseminating the relevant information in the planning stages and by integrating the EIA considerations into the final project in the construction stages. Different countries' legal systems have approached these considerations in different ways.

[] Project Proponent Pays and Prepares. In Ukraine, the project proponent pays for the state ecological expertiza, which means that if the object of the ecological expertiza is a state-funded enterprise, the ecological expertiza is funded by the state budget. Similarly, state ecological expertizas not included on the List of Activities and Objects Which Constitute an Increased Ecological Hazard (for example, those undertaken by resolution of the Cabinet of Ministers, the government of Crimea, local Radas, or their executive committees), are funded by the respective budget and environmental protection funds.⁷⁹ Although the proponent is responsible for the costs of the expertiza, the subdivisions of the MEPNS actually conduct the expertiza. However, the proponent is responsible for funding and submitting the EIA documentation to the state ecological expertiza, and the EIA documentation serves as the basis for the expertiza's conclusion.⁸⁰ For preparation of the documentation, the proponent must contract with licensed organizations.⁸¹

One option for providing a check on the quality and reliability of the EIA document prepared by the proponent is to retain some governmental control over who is qualified to undertake the EIA analysis. For example, under Polish law, there is a contractual relationship between the project proponent and an outside EIA expert, but the expert must be designated by the regional environmental authorities, who draw from a list of verified experts.⁸² Although it may seem that such attempts to extricate the EIA analysis from the direct influence of the proponent may help increase public confidence in the quality of the EIA, this practice has actually been heavily criticized in Poland as corrupt and thus abandoned. Poland's draft EIA law—expected to be adopted in the spring of 2000, but unadopted as of April 25, 2000—deletes the expert verification provision. Instead, the EIA system, which now has a well-developed infrastructure that includes experienced experts, authorities, and developers, will rely on the EIA Commission and public scrutiny to assure quality decisions.⁸³

[] Governmental Authority Prepares. One option for minimizing the appearance of inappropriate self-interest or influence on decisionmakers is to shift the responsibility of preparing the EIA from the proposer to a governmental authority. This has been done in several countries, including Denmark⁸⁴ and the United States. For example, NEPA delegates responsibility for preparing the EIS to the federal environmental agency that has approval authority for the project.⁸⁵ This agency must prepare the EIS no matter if the agency itself or a private developer is the proponent.⁸⁶ However, a private proponent may be called on to assist with, and in some cases to prepare, the initial EA that is used to determine [31 ELR 10299] whether or not a full EIS is required.⁸⁷ In addition, federal agencies sometimes contract with outside consultants for preparation of the EIS. Although this is permitted by law, NEPA regulations make clear that the agency is ultimately responsible for the assessment of the environmental impacts and the content of the EIS.⁸⁸ This use of consultants has been criticized for possibly interfering with the agency's ability to internalize environmental considerations and incorporate them into its routine decisionmaking processes.⁸⁹ On the other hand, supporters of this system argue that given the government's budget, time constraints, and the need for specialized expertise, using outside consultants may improve the quality of the EIS.

[] Public Organizations Prepare. EIA legislation may authorize independent organizations or individuals to conduct studies, prepare EIA documentation, and formulate conclusions that can be submitted to the decisionmaking authority for consideration. For example, Ukrainian law expressly permits "public ecological expertizas" to be convened on such organizations' own initiative and funding.⁹⁰ The conclusions of public ecological expertizas may be considered by both the agencies executing the state ecological expertiza and the project proponent.⁹¹

Similarly, in other countries, many public organizations have become involved in the environmental review processes of their countries through a variety of processes, collectively described as "parallel public participation." This process, initiated and paid for by NGOs, typically consists of organizing special public hearings and submitting comments and documentation to the competent authority for review. Parallel public participation has been implemented several times in the Czech Republic.

4. Contents of EIS/EIA Documentation

As a document intended to aid decisionmaking, the EIA documentation should provide reliable information about the proposed activity that clarifies the choices available to decisionmakers and the consequences of each choice. To achieve these objectives, EIA documentation typically includes analysis in three broad and interconnected areas: description of the proposed project and its alternatives; evaluation of the environmental (and other) impacts of the project and each alternative; and elaboration of measures that can be taken to avoid or minimize unwanted impacts (often collectively referred to as "mitigation" measures).⁹²

While Ukraine's ecological expertiza system does not specifically require an EIS as such, it does require that "environmental assessment documentation" be submitted to the agency conducting the expertiza. Further, Article 51 of the Law on Environmental Protection recommends that plans for economic and other activities include "data on theassessment of their impact on the environment and people's health." The assessment is to be based on consideration of Ukrainian environmental protection legislation, the environmental capacity and condition of the proposed site, and the total impact of the facility on the environment.

The Law on Ecological Expertiza expands on this recommendation by specifically discussing the documentation that must be submitted to the agency that conducts the state ecological expertiza. The EIA documentation is required to discuss the utility and feasibility of the proposed activity, the availability of alternatives, the environmental conditions in the vicinity of the project, the impact the project will have on the environment under both normal and extreme conditions, the measures that could be taken to reduce the level of environmental risk, and provisions detailing how compliance with environmental safety and protection requirements will be maintained.⁹³ The documentation must also contain a "Declaration of Ecological Consequences of the Activity"—a statement prepared by the project proponent that summarizes the EIA documentation.⁹⁴

The State Construction Standards (the Standards) further expand on the EIA documentation requirements found in the Law on Ecological Expertiza.⁹⁵ The Standards cover the activities and projects on the List of Activities and Objects Which Constitute an Increased Ecological Hazard,⁹⁶ for which ecological expertizas are mandatory. For objects on this list, the assessment must adhere to the requirements given in the Standards. In all other cases, the content of the EA is to be determined by the proponent and the master planner, with input from MEPNS local bodies.⁹⁷

Under the Standards, there are specific EIA requirements corresponding to each stage of the activity's development.⁹⁸ As previously discussed, the proponent designates a contractor to perform the EIA for the project. After the contractor carries out the EA, the proponent or master planner submits the EIA materials to the MEPNS for performance of the state ecological expertiza.⁹⁹ Specifically, the submitted documentation must include a separate EIA chapter that fulfills several requirements, including a thorough consideration of alternatives, evaluation of impacts, and discussion of mitigation measures.¹⁰⁰ In addition, the EIA chapter must include "information on local public opinion and associated problems that must be resolved," but the Standards are silent as to how this is to be achieved.

[31 ELR 10300]

5. Evaluation of Impacts

Although some EIA laws do not provide for a comprehensive alternatives or mitigation analysis, they all require scientific data and assessment of information on the environmental impacts of the proposed activity. EIA laws that require the consideration of alternatives generally also require that the impacts of each alternative are considered.

[] Baseline Data. An important element of impact assessment is the collection and evaluation of "baseline data," information about the current state of the environment in the vicinity of the proposed activity. While conducting baseline studies can be a very time-consuming and costly endeavor, the scoping process described earlier can assist in honing in on those aspects of the current local environment that demand the most attention.

Ukrainian law requires the EIA documentation to contain baseline data on the physical, geological, and climatological characteristics of the site of the proposed activity.¹⁰¹ Beyond the baseline data, additional mandatory components of the EIA documentation are: general characteristics of the development activities and economic activity to be performed; characteristics of the natural environment and assessment of impacts imposed on it; characteristics of the social environment and assessment of impacts imposed on it; assessment of impacts imposed on the "technogenic" environment, which is defined in Appendix 4 as the complex of technical and natural elements artificially created within the environment; measures for ensuring normative environmental conditions and environmental safety, including safety, protective, rehabilitation, and restitution measures; complex assessment of impacts imposed on environment by the designed activity and characterization of "remedial influence,"¹⁰² and a summary of this information entitled Declaration of the Ecological Consequences of a Planned Activity.¹⁰³

[] Addressing Uncertainty. As in any study of some complexity, comprehensive impact prediction is often hindered by gaps in knowledge and the uncertainties introduced by methodological choices. Although Ukrainian expertiza law requires additional research to be conducted pursuant to "modern methodology" when initial data is incomplete,¹⁰⁴ the EU Directive, NEPA, and the Espoo Convention all try to address this reality by compelling full disclosure of these gaps and the scientific uncertainty that affects the compilation of information on environmental impacts.¹⁰⁵

A related issue is that many EIA laws, including those of Ukraine,¹⁰⁶ use existing emissions or pollution control standards to evaluate the potential impacts of a proposed project. A problem associated with this approach is that measuring impacts only against regulatory standards may not identify all the impacts that are "significant" for the broader purposes of an EIA. For example, those impacts for which standards or thresholds have not yet been set will not be identified. Using standards as yardsticks for significance may also run the risk of not effectively addressing the synergistic effects of multiple impacts. Thus, an emphasis on the overall process of impact assessment rather than on using existing standards to measure impacts might be more effective.¹⁰⁷

[] Consideration of Social Impacts. As is reflected in the Ukrainian Standards, which require EIA documentation to include a description of the "social environment" and an assessment of any impacts the proposed project will impose on it, EIA documentation may reach beyond the consideration of environmental effects to encompass social impacts.¹⁰⁸ For example, the EU Directive requires EU member states to identify, describe, and assess the project's effects on humans, fauna, flora, soil, water, air, climate, landscape, material assets, and cultural heritage. The EIA documents also must assess the interaction between all of these factors¹⁰⁹ and describe the likely significant environmental effects of the project from its existence, use of natural resources, emission of pollutants, creation of nuisances, and elimination of waste.

NEPA and its regulations require an EIS to consider social, economic, historical, aesthetic, cultural, and other non-physical impacts of a proposed activity on the quality of the human environment.¹¹⁰ Although economic and social impacts do not in themselves trigger the EIS requirement, they must nonetheless be considered when assessing a proposed activity with clear and significant physical environmental impacts.¹¹¹ In practice, the consideration of social impacts in EIS is limited. This may be explained by several factors: (1) the U.S. EIA process places great emphasis on the physical impacts of a project on the air, water, land, and ecological systems; (2) individuals involved in drafting the EIS and those acting in decisionmaking capacities are generally not trained in the social sciences; and (3) the likely social consequences of a proposed action may be very difficult to predict and define.¹¹² Despite these limitations, there are instances where federal courts have held EIS to be insufficient for failure to fully consider social impacts of a proposed activity. For example, a federal appellate court held that an EIS was insufficient because it failed to fully consider the impact of a proposed housing unit on crime rates in the vicinity and it did not consider the emotional and physical isolation that might result from the structure's location and design.¹¹³

[] Consideration of Indirect and Cumulative Impacts. EIA laws also may require documentation to consider impacts that are both temporally and causally removed from the immediately proposed activity. Ukrainian law requires EIA documentation to include a "complex assessment" of the environmental [31 ELR 10301] impacts of a proposed activity.¹¹⁴ The EU Directive more specifically recommends that the description of impacts cover the direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, and positive and negative effects of the project.¹¹⁵ In the United States, NEPA regulations require EIS to contain an assessment of the cumulative impacts of the immediate project and others similar to it.¹¹⁶ In practice, cumulative impacts are often not fully addressed in EAs or EIS due to their complexity and the lack of available information on their effects.¹¹⁷ However, this requirement has been judicially enforced. For example, one court found that the U.S. Forest Service violated NEPA by failing to sufficiently analyze the cumulative impacts of a series of proposed timber sales on the overall depletion of existing old growth forest habitat.¹¹⁸

6. Identification of Project Alternatives

Identification and analysis of alternatives to the proposed project is a critical feature of effective EIA laws and is required by most legislation, including the EU Directive.¹¹⁹ Indeed, NEPA regulations call the alternatives analysis the "heart of the environmental impact statement."¹²⁰ It is vital to explore these options early in the project's development, both to ensure sufficient consideration of alternatives and to allow for modifications to the proposed activity in light of the alternatives. Alternatives often focus on location or other siting concerns, but may also include the project's size, technological features, design, or materials used in its construction. Under Ukrainian law, the EIA documentation must include a consideration of "alternative ways of designed activity disposal" and a consideration of alternative technologies.¹²¹

Similarly, under U.S. law, the responsible agency or agencies must explore and objectively evaluate all reasonable alternatives, and also explain why certain alternatives were eliminated from more detailed study.¹²² In addition to assessing the alternatives identified during the scoping process, NEPA regulations require the agency in every case to analyze the alternative of not proceeding with the development at all—the so-called no-action alternative.¹²³ As part of the alternatives analysis, agencies also are directed to state their preferred alternative.¹²⁴

One criticism of the alternatives analysis is that in practice it tends to be limited to only those alternatives generated by the project proponent. In the United States, the public is invited to comment on the draft EIS, including a critique of the relevant agency's alternatives analysis, and the comments received must then be responded to in the final EIS.¹²⁵ Denmark has addressed this issue by requiring the EIS to include a full assessment of alternatives proposed by others in addition to those offered and considered by the proponent. The efficacy of this stronger requirement depends on the degree to which alternatives are considered.¹²⁶

7. Mitigation Measures

Actions taken to avoid or minimize the adverse environmental impacts of a proposed project are called "mitigation measures." Mitigation measures can be made into required conditions of project approval and incorporated into the final decision on a project. For this to effectively occur at the final decision stage, mitigation measures and other conditions should be clearly spelled out in the EIS or EIA documentation.

[] Mitigation Measures Built Into Project Proposal. In some cases, by incorporating mitigation measures into a project proposal at an early stage, the proponent can avoid the requirement to conduct a full EIA. For example, in the United States, an agency may issue a FONSI for a project that would otherwise require a full EIS, on the condition that it incorporate mitigation measures that will cut its impacts down to a level below the "significance" threshold.¹²⁷ However, a court may conduct an independent review of the agency's finding to determine if it was "arbitrary and capricious."¹²⁸ In one recent court case, a federal court of appeals found that the U.S. Forest Service had violated NEPA in issuing a FONSI because it did not support its proposed mitigation measures with sufficient evidence of their efficacy, did not propose any monitoring plan to determine the mitigation measures' ultimate effect on the project's impacts, and neglected to consider alternatives in the event that the measures failed.¹²⁹

[] Mitigation Measures Considered in EIA Documentation. Even if mitigation measures are not included in the project proposal, most EIA laws require some consideration of mitigation measures during the assessment of a proposed activity. Ukrainian law requires EIA documentation to include an analysis of "rehabilitation measures" to restore environmental conditions altered by the project, "restitution measures" to compensate for irretrievable losses to the environment, and information describing methods that could be employed to minimize adverse effects, with an assessment of their effectiveness.¹³⁰

[31 ELR 10302]

The analysis of alternatives is one method of highlighting opportunities for mitigation. NEPA regulations require inclusion of mitigation measures in the EIS,¹³¹ and provide examples of what form such measures might take.¹³² According to the regulations, mitigation measures can include: avoiding the impact by not taking parts of an action; limiting the magnitude of the action; repairing, rehabilitating, or restoring the affected environment; reducing the impact over time through maintenance operations; and compensating for the impact by replacing or providing substitute resources or environments.¹³³ For example, an EIS that proposes a land use plan for a hazardous waste site could include mitigation measures that are designed to reduce the impacts on water sources, such as minimizing use of groundwater so that water withdrawal does not influence existing contamination plumes, or employing agricultural practices that are designed to minimize soil erosion.¹³⁴

[] Ensuring Mitigation Measures Are Actually Employed. Many EIA laws simply require mitigation measures to be discussed in the EIA documentation, without clear requirements to implement and enforce them when the project is constructed. For example, Annex IV of the EU Directive requires EIAs to include a description of the measures "envisaged" to prevent, reduce, and offset significant adverse effects on the environment, with no further provision for their enforcement.

One option for enforcement is to prohibit a project from operating until the mitigation measures have actively been implemented. For example, under Poland's 1980 Environmental Act, the "location decision" for a project may not be granted until appropriate mitigation measures, including the application of the best pollution control technology, have been incorporated into the proposed activity by the project. The impact of this requirement is strengthened by a provision that prohibits a project from operating until the mitigation measures identified in the location decision have actually been implemented—for example, until pollution monitoring devices have actually been installed.¹³⁵ In addition, violation of this requirement is punishable by up to three years of imprisonment.¹³⁶

Another option is to challenge the sufficiency of the agency's consideration of mitigation measures, usually through a court proceeding or other formal review. For example, even though NEPA is essentially a procedural statute that in itself cannot impose a substantive requirement that agencies mitigate adverse environmental effects or adopt a mitigation plan, the failure of an agency to adequately discuss and consider mitigation measures during the EIA process can lead to a judicial determination that the resulting EIS is deficient and that the environmental review process must be repeated.¹³⁷

8. Public Review of EIA Documentation

Public review of the EIA documentation is an integral component of the EIA process. A common criticism of both the content and implementation of EIA laws is the lack of public debate at critical stages of the decisionmaking process. A related concern is the degree to which any debate that does occur is meaningful, in the sense of being considered by decisionmakers and having an impact on the final decision. Relevant factors include the sufficiency of public participation; the publication and ready provision of information to the public; the holding of public hearings to discuss both draft and final documentation; and requirements that the competent authority must consider, reply to, and/or incorporate public comments in the final documentation.

In Ukraine, project proponents are required to notify the public about the initiation of the state ecological expertiza by issuing the Declaration of Ecological Consequences of the Activity.¹³⁸ At the same time, the proponent must submit the full EIA documentation to the expertiza, initiating the review process.¹³⁹ If a public ecological expertiza has been organized, the executors of the public ecological expertiza are directed to make available relevant information about public ecological expertizas, specialists involved in the expertizas, the subject of the ecological expertizas, and the terms of implementation for the expertizas.¹⁴⁰

According to the Law on Ecological Expertiza, the executors of the expertiza shall hold public hearings or open sessions.¹⁴¹ Public participation in the expertiza can take the form of presentations in the mass media, written statements, proposals and recommendations, and involvement of public representatives in official expertiza commissions and groups.¹⁴² No specific timetable is provided to signify when the circulation of information or public hearing must occur. In practice, hearings during the expertiza often do not occur at all; the absence of public hearings likely can be explained by the lack of a regulated procedure and the costs associated with holding hearings.¹⁴³

Several other provisions of Ukrainian law address public involvement and public opinion. For example, project proponents are required to ensure transparency and to consider public opinion in their plans; executors of the state expertiza have to consider public opinion in preparing their conclusions and making future decisions with respect to the proposed project¹⁴⁴; and, for projects and activities subject to mandatory state ecological expertizas—those on the List of Activities and Objects Which Constitute an Increased Ecological Hazard—the EIA documentation submitted to the ecological expertiza must include information about the "local public attitude."¹⁴⁵ Despite the existence of this language, definitions of these terms and specific methods for gathering this information are notably lacking. Even if public opinion is included in the EIA documentation, what influence [31 ELR 10303] it has on the decision of the relevant agency is not apparent; as Ukrainian environmental NGOs have observed, there are no formal procedures for considering public opinion or incorporating public participation in the EIA process.¹⁴⁶

Like Ukraine, other CEE countries have been slow to incorporate public input into the EIA process at all, much less at an early stage in the approval process. Although most of the laws have moved beyond technical review of decision-supporting documents to systems that incorporate both expert and public EIA review, experts have found that:

the actual quality of the civic review is largely pre-determined by the quality of public notification about the beginning of the review phase. Public participation in this stage of assessment is especially limited by the fact that highly effective forms of public notification (information notice boards at the site of the development or paid advertisements in local media) are not legally required nor are they applied as a standard practice. Given the limited extent of public financial support for the NGO activities in the CEE region (caused by the absence of well-developed taxation laws), NGOs can rarely afford to spend enough resources to undertake a thorough review of the EIA documents. This also has an indirect effect on the quality and extent of NGO participation in the EIA reviews.¹⁴⁷

Polish law provides one example of the disparity between the content of legal provisions for public participation and their actual implementation. In Poland, both the 1980 Environmental Protection Act and 1960 Administrative Procedure Code provide for public participation in the legal process.¹⁴⁸ The public must be informed about the initiation of the EIA process and given procedural rights equal to those of the proponent's of the project. Specifically, they have the right to access documents, the right to raise objections, the right to be heard, and the right to bring an administrative challenge to the decision.¹⁴⁹ The public authorities must inform interested NGOs prior to issuing a planning permission—the first stage of the development authorization procedure—and construction consent—the second stage—relating to a development project requiring EIA. The interested NGOs or citizen organizations with legal interests that may be impaired by the activity may then demand to be allowed to participate in the proceedings can leave in or may file comments on the proposed activity.¹⁵⁰ Further, all ecological associations from the area must be informed about location proceedings concerning projects that require EIA.¹⁵¹

Although Poland's code includes strong procedural provisions, they have not always been applied. Local public interest environmental lawyers have observed that:

provisions regarding public hearings are not widely observed unless substantive law requires a mandatory hearing. Authorities rarely call for a hearing in cases where it is justified by Administrative Procedure Code. For example, although almost all planning permissions and construction consent requiring mandatory EIAs concern controversial issues warranting a hearing, hearings rarely take place.¹⁵²

[] Implementing Specific Procedures for Public Participation. In countries like Ukraine, whose laws include opportunities for public participation, developing and implementing specific procedures for public participation in the EIA process would breathe life into otherwise disregarded legal provisions. In the Czech Republic, for example, the 1992 Environmental Impact Assessment Act¹⁵³ correlates opportunities for public participation with each phase of the EIA procedure. Public participation includes: (1) a public examination of the EIA documentation, which must be publicly available for 30 days in municipalities affected by the proposed project; (2) public comment on the EIA documentation during the 30-day period; (3) a public hearing on the expert opinion and EIA documentation, which must be made available to the public prior to the hearing; and (4) participation of NGOs and civic associations in the decisionmaking process. A defined group of citizens can be a party to the project approval procedure.¹⁵⁴ The involvement of NGOs in the review of the EIA documentation and their positions as parties in the siting and permitting process that follows after the EIA process is one of the major strengths of the EIA procedure in the Czech Republic.¹⁵⁵

[] Timing of Public Involvement. Public involvement should occur at strategic phases of the EIA process, before key decisions have been made. Both the U.S. and Dutch EIA systems place great emphasis on public disclosure and involvement at an early point in the process. They do so both by encouraging public participation in scoping meetings, discussed earlier, and by authorizing public review of and comment on the draft EIS.¹⁵⁶ In the United States, once a draft EIS is prepared, the relevant agency must publicize its availability in the Federal Register and in local periodicals for projects of local interest; provide a copy to any person, organization, or agency that requests one; and actively solicit comments on the draft EIS from appropriate state and local environmental agencies, Native American tribes potentially affected, and the general public.¹⁵⁷ At least 45 days [31 ELR 10304] must be allowed for comments on draft EIS.¹⁵⁸ Dutch law places similar emphasis on public review of EIA documentation. The draft EIS must be published no later than eight weeks from when it was submitted to the competent authority.¹⁵⁹ The public is then invited to inspect the EIS until the decision on the proposed activity becomes final.¹⁶⁰ The public also may submit written comments on the EIS for at least four weeks after it is deposited for inspection.¹⁶¹

In addition, both the United States and the Netherlands incorporate public hearings as part of the overall EIA process. In the United States, federal agencies must hold or sponsor public hearings "whenever appropriate."¹⁶² In the Netherlands, a public hearing must be held to discuss the EIS.¹⁶³ U.S. and Dutch law require the agencies and the competent authority, respectively, to explain where interested persons can get information on all aspects of the EIA process, and to make EISs, comments on the EISs, and all underlying documents available to the public.¹⁶⁴

[] Parallel Public Participation. Despite the strength of many countries' legal provisions, in actuality, NGOs often have had to step outside of the formal EIA procedures in order to cope with inadequate opportunities to review the EIA documentation. As stated above, Ukrainian law authorizes the formation of public ecological expertizas whose conclusions serve as recommendations to the state ecological expertiza and the project proponent.¹⁶⁵ The efficacy of such an authorization is limited by the fact that all the costs of convening a public ecological expertiza must be borne by the groups doing so.

Similarly, in other countries, an increasing number of NGOs have gotten involved through a variety of processes, collectively described as "parallel public participation." Typically, this process is organized by NGOs who hold special public hearings in affected communities to inform the local population about the formal EIA process and documentation. These special hearings follow the format of the official hearings organized by the competent authority. The NGOs encourage and gather public comments on the proposed activity, which they then submit to the competent authority for review.¹⁶⁶

Parallel public participation has been implemented several times in the Czech Republic.¹⁶⁷ The parallel public participation process improves public participation in decisionmaking, and can affect the final decision of the competent authority. For example, a proposed recreational park at Rajcherov was halted in part because of the efforts of a coalition of NGOs.¹⁶⁸ The coalition successfully collected and submitted official comments, gaining citizen and political support in the process. The regional authority ultimately refused to allow the proposed development.¹⁶⁹

[] Public Participation Required by International Agreements. In addition to the requirements found in national laws, multilateral and regional agreements often set general requirements for public participation, leaving the specifics to the individual member countries or parties to implement through national law. Further, even where signatory countries have not yet taken specific steps to implement international agreements, these agreements usually have force through general constitutional provisions that incorporate a country's international obligations into national law. Thus, international laws and treaties on EIA can serve to supplement a country's existing provisions on public participation, and to guide further development of these provisions through national laws and regulations.

For example, under the Espoo Convention, the parties must distribute EIA documentation to the public of the "affected party" within a "reasonable time" before the final decision is taken and make arrangements for the submission of public comments to the competent authority of the "party of origin."¹⁷⁰ Similarly, the Aarhus Convention requires that parties inform the public about the proposed activity and the "envisaged procedure" in an adequate and timely manner early in the environmental decisionmaking process.¹⁷¹ This envisaged procedure has to include reasonable time frames that allow the public to prepare and effectively participate, and must occur when "all options are open."¹⁷² The procedures also must allow for public comment relevant to the proposed activity.¹⁷³ Moreover, under Article 9 of the Aarhus Convention, any person whose request for information has been ignored, wrongfully refused, or otherwise inappropriately handled,¹⁷⁴ or has not been able to participate in specific activities under Article 6, must have access to a review procedure before a court or other impartial and independent body.¹⁷⁵ Finally, the EU Directive requires EU member states to ensure that requests for development consent and information supplied by the proponent be made available to the public within a "reasonable time" in order to allow the public a chance to comment before development consent is granted.¹⁷⁶

9. Final EIS and Decision on the Activity

In most countries, the final EIA documentation forms the basis for the decision on the proposed activity. The degree to which public comment is considered and/or incorporated into the final decision, as well as how decisions are arrived at, varies from country to country.

[31 ELR 10305]

[] Incorporation of Public Comment Into Final EIA Documentation. Public participation in EIA is more meaningful if the final EIA documents and decisions incorporate, or at least acknowledge and respond to, comments received from the public. Under Ukrainian law, the state ecological expertiza is conducted after the proponent publishes the Declaration of Ecological Consequences of the Activity and submits its EIA documentation to the expertiza agencies.¹⁷⁷ The final EIA documentation is required by law to contain information on "local public attitude."¹⁷⁸ Furthermore, the state ecological expertiza's conclusions and decisions regarding the subjects of the expertiza shall take public opinion into consideration.¹⁷⁹ No further explanation is given to suggest how this information should be gathered by the proponent when it prepares the EIA documentation or taken into consideration by the expertiza when it reaches its final conclusions.¹⁸⁰

The U.S. EIA system provides more detailed guidance on how public comments are to be considered. NEPA regulations require agencies to "assess and consider" public comments on the draft EIS.¹⁸¹ In addition, agencies must include the written summaries of these comments and responses to them in the final EIS.¹⁸² Among the possible responses are the actual modification of analyses to conform with the comments, or at the very least, an explanation of why the comments do not warrant further action, giving the reasons for the agency's position.¹⁸³ In the United States, the agency need not publish the complete EIS. However, a Notice of Availability of the EIS must be published, and it must provide information on where the complete EIS, the public comments, and the underlying documents are available for public inspection.¹⁸⁴

The Notice of Availability also may mention what consideration of public comments has occurred in the preparation of the final EIS. For example, the EIS Notice for the Headwaters Forest Project in California¹⁸⁵ stated that approximately 18,000 comments were received, and detailed what changes were made to the documents in response to public comments. Some notices have specifically stated that additional comments will be considered during the preparation of the final record of decision (ROD) for the activity.¹⁸⁶ Generally, when few comments are received, they are often listed by commenter and individually responded to; while when many comments are received, they are often categorized by subject matter or issue. The general response format is to list each comment and follow it with the agency's response. Responses must do more than agree or disagree with the comment; they must fully explain the agency's reasoning in accepting or rejecting it.

International law and agreements also provide broad requirements that decisions consider public comments. For example, the Aarhus Convention requires each party to ensure that the decision takes "due account of the outcome of the public participation"¹⁸⁷; and the Espoo Convention on Transboundary EIA similarly requires the final decision to take "due account" of the comments received and of the outcome of the EIA.¹⁸⁸ The EU Directive on EIA requires public comment to be "taken into consideration" by the government authority responsible for granting or refusing development consent when reaching its decision on the proposed activity.¹⁸⁹ These requirements are still being fleshed out through incorporation into national laws. In addition, Poland and Croatia have taken steps to combat the lack of consideration of public input by establishing EIA commissions to conduct a preliminary review of the submitted EIA documents and answer public comments.¹⁹⁰

[] Explanation of the Final Decision. As noted above, Ukrainian law prohibits the implementation of any programs, projects, and activities covered by the ecological expertiza laws without a positive determination by the state ecological expertiza.¹⁹¹ The competent authority must reach a conclusion within 45 days after submission of the required documentation by the proponent.¹⁹² In "exceptional cases"—depending on the "complexity" of the project—the authority may take up to 120 days.¹⁹³ The conclusion may: positively assess the EIA documentation as demonstrating that the project fully complies with environmental protection legislation and regulations; send back documentation that is not in complete accord with legislation and regulations for corrections needed for compliance; or negatively assess documentation that demonstrates that the project will violate environmental protection requirements.¹⁹⁴

All expertiza conclusions, whether positive or negative, must provide "Exact and clear assessments" of the EIA documentation before they can be finalized.¹⁹⁵ While this term is not defined, the documentation appears to benefit from a presumption that it should receive a positive conclusion if it meets the environmental protection indicators listed in Chapter 5 of the Law on Conducting Ecological Expertiza.¹⁹⁶ For example, one such indicator is whether the documentation provides for the "maximum possible preservation of existing plant cover, and restoration of ruined and establishment of new ones, fulfillment of measures aimed at protection of fauna (including fish protective measures at water intake facilities)."¹⁹⁷ Once a conclusion is reached, [31 ELR 10306] the agency executing the state ecological expertiza must inform the public through the media.¹⁹⁸

NEPA regulations explicitly require several steps before the issuance of a final decision that Ukrainian laws do not yet appear to incorporate. For one, NEPA requires agencies to circulate either the summarized or complete final EIS, and to furnish the draft and final EIS to agencies, organizations, and individuals who submitted comments on the draft or requested a copy. The regulationsimpose a minimum 30-day waiting period between the filing of the final EIS and the agency's actual decision on the project.¹⁹⁹ The agency must prepare a detailed ROD explaining its final decision, identifying all alternatives that it considered in reaching the decision, and specifying the environmentally preferable alternative.²⁰⁰ The agency must also identify and discuss all factors that it used to make its decision and state how those factors entered into the decision.²⁰¹ The ROD must also indicate and explain whether all practicable means to avoid or minimize environmental harm have been adopted, including where and why they were not adopted.²⁰² The ROD facilitates public participation, both by providing a "paper trail" that allows citizens to determine whether the agency made a rational decision, and by including the agency's analysis of its decision, which can constitute the basis of legal challenges based on the ROD.²⁰³

Similarly, the EU Directive and Aarhus Convention obligate member states and parties to ensure that the public is informed of the decision and that its full text is made available to the public along with the reasons and considerations that formed the basis for the decision.²⁰⁴ The EU Directive further requires this notice to contain a description "where necessary" of the main measures taken to avoid, reduce, and if possible offset the major adverse affects.²⁰⁵ Individual EU member states have incorporated similar requirements. For example, § 7.37 of the Dutch Environmental Act requires the decision to be supplemented with a statement of the grounds for the decision, including "what consideration has been given to the comments and recommendations submitted" concerning the EIS.²⁰⁶ The competent authority is also charged with circulating and publishing the decision.²⁰⁷

B. Post-Decision Monitoring, Enforcement, and Review

1. Overview

Ultimately, the effectiveness of EIA laws depends in large part on their enforcement measures. EIA laws that contain explicit provisions for ongoing post-decision analysis of approved activities will more effectively ensure compliance with environmental protection standards, mitigation requirements, and other conditions set in the final decision.

Generally, post-decision review is concerned with three separate issues: compliance with EIA procedures during the decisionmaking process, from screening to issuance of the final EIS; the merits of the decision resulting from the process—whether it satisfies the substantive command of the EIA statute and other environmental laws; and ensuring actual adherence to the terms of the decision when carrying out the activity.

2. Judicial Review—Procedural and Substantive

[] Challenge of Decision Not to Conduct a Full EIA. While legislative provisions authorizing judicial review often focus on review of the final decision on the activity, some countries permit review at earlier stages. In the United States, for example, an agency decision that an EIS is not required—as reflected in a FONSI—is subject to court challenge.²⁰⁸ A heavy burden rests with the challenger, who must demonstrate that the agency decision was "arbitrary and capricious."²⁰⁹ Courts apply a deferential standard to agency's findings, requiring only that the agency finding was reasonably supported by the administrative record available to the agency at the time of the decision.²¹⁰

[] Challenge of Final Decision of Competent Authority. Ukrainian law provides only for post-expertiza review.²¹¹ Challengers can submit requests for "annulment" of parts or all of the conclusions of state ecological expertizas to the body that conducted the expertiza. If the request is refused, the complaint next may be submitted to a court of law that may invalidate conclusions on specific grounds, including "violations of the rights of participants in the ecological expertise process," if they have led to unreliable conclusions.²¹² In addition, violators of the ecological expertiza legislation also can be subject to disciplinary, administrative, civil, and criminal responsibility,²¹³ under relevant bodies of Ukrainian law. No specific offenses or penalties are defined by the expertiza law itself.

In the United States, citizens may challenge an EIS under the federal Administrative Procedure Act (APA) once a determination on the ultimate proposal has been made.²¹⁴ However, as the U.S. Supreme Court has stated in the landmark Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,²¹⁵ challengers must have participated meaningfully in the administrative EIA process [31 ELR 10307] before bringing a lawsuit in court. Challenges often focus on the adequacy of the EIS consideration of alternatives and incorporation of mitigation measures, but may also concern the adequacy of public participation inthe EIA process.²¹⁶

Judicial review of the EIA process in the United States is generally limited to questions of procedure, not substance. Generally, courts will not strike down agency decisions unless the challengers have demonstrated a fundamental flaw in the EIS that renders an agency decision unreasonable or "arbitrary and capricious." This tough standard of review is similar to that found in other countries. In Poland, for example, administrative courts are not expected to evaluate the merits of the agency's ultimate decision, but will hold unlawful decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the general principles of administrative procedure.²¹⁷

In the United States, a court's review of an agency decision generally is limited to the administrative record and focuses on whether an agency prepared the EIS with "objective good faith" and took a "hard look" at environmental impacts and reasonable alternatives.²¹⁸ A successful challenge usually results in the revocation of the agency decision and issuance of an injunction on the project until an adequate EIS is completed²¹⁹ pursuant to federal and state EIA procedures. Some states provide for a more substantive review of agency decisions on project proposals. For example, California's "little NEPA," the California Environmental Quality Act, states that public agencies should not approve projects as proposed if there are "feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects …."²²⁰ However, there is still the qualification that "in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof."²²¹

In many countries in central and eastern Europe, such as Bulgaria, Croatia, Hungary, Romania, Slovakia, and Slovenia, the EIA legislation allows for review of both compliance with the EIA procedures and of the merits of the decision through the administrative review process. The provisions of the Bulgarian Regulation on EIA are a positive example in the region. In Bulgaria, copies of the final decision must be presented to "concerned parties" and made available to the public. Concerned parties then have 14 days after announcement of the decision to appeal to the respective district court under the Bulgarian Administrative Procedure Act.²²² The Bulgarian procedure stands in contrast to countries where the role of the reviewing agency is simply to produce documentation and not to issue a formal decision. NGOs in the region have noted that in these countries, the quality of the EIA process "largely deteriorates …. A notable example of such decline is the EIA process in the Czech Republic, which results only in issuance of a standpoint that cannot be formally reviewed."²²³

The Aarhus Convention is attempting to provide some consistency to judicial review of environmental decisions throughout the UNECE region. It requires parties to ensure that members of the "public concerned":

Have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 [decisions relating to activities listed on Annex I or which the party has determined may have a significant effect on the environment]….²²⁴

3. Administrative Oversight and Post-Project Analysis (PPA)

Another option for post-decision review is oversight by an administrative body. While Ukrainian law requires state ecological expertizas to ensure projects' compliance with environmental, public health, and building standards and regulations, it is unclear from the statutory language if this mandate continues beyond the project approval and encompasses ongoing monitoring to ensure that the project complies with any conditions and mitigation requirements placed on the final decision.

[] Oversight by the Approving Authority. The responsibility for post-decision oversight can be placed on the same agency that made the EIA decision. For example, the Netherlands has specific requirements for post-project evaluation, and its Environmental Management Act explicitly provides for post-decision evaluation of approved activities.²²⁵ Once the competent authority has made the decision to allow an activity that required an EIS, it must investigate the actual effects of the activity on the environment, during or after the activity's completion, and publish a report on its findings.²²⁶ If the results demonstrate that the activity is considerably more damaging to the environment than was predicted, the competent authority is directed to limit or remedy its effects.²²⁷

[31 ELR 10308]

In the United States, the regulations implementing NEPA authorize and recommend, but do not require, agencies to monitor actions they approve to ensure that the terms of their decisions are executed.²²⁸ On the other hand, the regulations do mandate that mitigation measures and other conditions established in the EIS or during its review and committed to as part of a decision be followed by the project proponent.²²⁹ The agency can ensure that these conditions are implemented by including them in grants, permits, or other approvals; by conditioning funding of actions on the carrying out of mitigation measures; by informing cooperating agencies on the progress of execution of mitigation measures; and by making monitoring reports available to the public.²³⁰ In practice, mitigation measures might be discussed and sufficiently considered, but not committed to or implemented. Due to the procedural nature of NEPA, this would probably not constitute an actionable violation of the statute.

[] Oversight by an Independent Body. In the United States, both the CEQ and EPA oversee agency compliance with NEPA. Congress first established the CEQ within the Executive Office of the President as part of the NEPA regime, and additional responsibilities were delegated to the CEQ by the Environmental Quality Improvement Act of 1970.²³¹ In addition to serving as an advisor to the President on environmental policy issues, the CEQ oversees federal agency implementation of the EIA process and mediates interagency disputes regarding the adequacy of EIS. It also serves to interpret NEPA and the CEQ regulations, approve federal agency procedures that implement NEPA, and issue guidance.²³² In practice, the role of the CEQ is limited by its advisory nature and inability to accept many EIS referrals due to limited resources, while the role of the EPA is limited by the NEPA regulations' requirement that EPA complete its review of the EIA process before an agency files its ROD—which has the effect of preempting EPA review of the agency's actual decision on a project.²³³

In 1990, Poland established an EIA Commission to assist the Environment Minister in reviewing EIAs of "especially harmful" projects. Similar in effect to the CEQ, the Polish EIA Commission actually was modeled after the Dutch Committee for Environmental Impact Assessment.²³⁴ Given the expertise and prestige associated with its members, its advice has been very influential. Under Polish law, any decision, including development consent, is invalid if it would result in violating environmental protection requirements. To give effect to this legal requirement, the Environment Minister—with advisory input from the EIA Commission—and regional environmental authorities were given veto power over projects subject to EIA.²³⁵ Due to recent administrative reform, the Environment Minister retains this power only in relation to proposed highway projects, while regional and local authorities now oversee the bulk of proposed projects and their EIAs.²³⁶ Other authorities are responsible for post-EIA monitoring, including the Inspectorate, which is ultimately responsible for monitoring whether the conditions in the development consent have been met, and the planning authorities, who can make future assessments a condition of the development consent.²³⁷

[] Self-Monitoring and Disclosure by the Project Proponent. Often, new information affecting the environmental impacts of an activity becomes available after EIA documentation has been prepared and activities undertaken. If this is true before a decision on the activity has been made, one method of incorporating this information is to require project proponents to submit supplemental documentation. In the United States, the requirement to submit supplements to a draft or final EIS is triggered if an agency makes substantial changes in the proposed activity or if new information or circumstances arise that are relevant to environmental concerns.²³⁸

[] Periodic Review of Permits. The EIA laws in Bulgaria and Romania provide innovative approaches to post-decision review that authorize the state authorities to grant permits for limited durations, for example five years.²³⁹ They then can initiate a new permitting procedure for the existing facility through ongoing environmental auditing and EIA procedures.²⁴⁰ Poland's 1980 Environmental Protection Act contains a similar system of environmental auditing that allows the regional environmental authorities to require an existing facility to undergo an EIA.²⁴¹ NGOs in the CEE region consider this legal procedure quite innovative and currently the best post-EIA monitoring/enforcement practice worldwide. On the other hand, most of the EIA systems in the region require preparation of post-EIA monitoring plans as a part of the EIA documents, but the application of these requirements is rather limited.²⁴² Similarly, Article 6(10) of the Aarhus Convention requires parties to ensure that when a public authority reconsiders or updates the operating conditions for an activity that is covered by its public participation provisions, the public participation procedures must be followed.

[] International Emphasis on PPA. Article 7 of the Espoo Convention on Transboundary EIA is devoted to the issue of PPA. However, it leaves the decision of whether or not to carry out PPA to the parties. If undertaken, the analysis is required to incorporate "surveillance" of the activity and determination of adverse transboundary impact. Objectives of the PPA are defined as (1) monitoring compliance with the conditions in the authorization or approval of the activity; (2) monitoring the effectiveness of mitigation measures; (3) review of an impact to determine proper management [31 ELR 10309] and cope with uncertainties; and (4) verification of predictions for use in the planning of similar activities in the future.²⁴³ Any dispute arising from this or other provisions of the Espoo Convention is subject to Article 15 which requires parties to resolve disputes by negotiation, submission of the dispute to the International Court of Justice, and/or arbitration.

III. International Developments in EIA

A. Transboundary EIA

Growing concern for the transport of negative environmental effects across national boundaries was a catalyst for the Espoo Convention. While several other agreements, such as the U.N. Convention on the Law of the Sea, have obligated parties to assess environmental impacts of their activities,²⁴⁴ the Espoo Convention focuses directly on EIA and establishes innovative procedures that can significantly contribute to international pollution control.

These innovations build on the central mandate of the Espoo Convention, which directs parties to "take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activity."²⁴⁵ Parties are directed to take the necessary measures to implement the Espoo Convention's provisions. These measures must include the establishment of an EIA procedure that both "permits public participation" and guides the preparation of EIA documentation.²⁴⁶

Under the Espoo Convention, a party must conduct an EIA prior to approving any project that is listed on Annex I and is likely to have a significant adverse transboundary impact.²⁴⁷ For example, the convention contains detailed notification, consultation, and information exchange requirements that must be complied with by the "party of origin" and "affected party"; confers rights to the affected party's public equal to the rights that the public of the party of origin has with respect to commenting on the activity and participating in the EIA process; sets minimum standards for the scope and content of the EIA; and explicitly requires decisionmakers to take public comment into account in reaching decisions.²⁴⁸ The Espoo Convention's public participation and access to information requirements are supplemented by the Aarhus Convention.²⁴⁹

The Espoo Convention's standards on procedure, scope, and content of the EIA are increasingly reflected in national legislation as countries seek to amend their laws to comply with the Espoo Convention.²⁵⁰ In addition, 1997 amendments to the EU Directive included making several additions to the provision on transboundary impacts. The new Article 7 directly implements the required elements of the Espoo Convention.²⁵¹

Ukrainian law provides that in the event of conflicting laws, the rules of an international treaty will govern.²⁵² Ukraine is a party to the Espoo Convention and its Standards expressly require that if the designed activity affects neighboring countries, an EIA addressing transboundary impacts must be developed pursuant to the Espoo Convention and its procedural requirements.²⁵³

B. Strategic EA

One of the most rapidly evolving trends in EIA is its application not only to specific projects and activities, but also to programs, policies, and plans.²⁵⁴ This practice, known as strategic environmental assessment (SEA), calls for the implementation of EIA procedures at earlier, more strategic stages in decisionmaking than the individual project level.²⁵⁵ SEA is viewed by its proponents as a tool for ensuring that there is a place for environmental considerations in the political and policymaking processes and for achieving sustainable development. As the current Environmental Action Program of the European Commission states:

Given the goal of achieving sustainable development it seems only logical, if not essential, to apply an assessment of the environmental implications of all relevant policies, plans, and programs …. The integration of environmental assessment within the macro-planning process would not only enhance the protection of the environment and encourage optimization of resource management, but would also help to reduce those disparities in the international and interregional competition for new development projects, which at present arise from disparities in assessment practices in the member states.²⁵⁶

SEA builds on the same fundamental principles and procedures as EIA, such as the determination of significance, consideration of alternatives, thorough documentation, and public participation, and SEA is designed to inform decisions at subsequent project levels.

Often, existing national legislation already contains a provision that applies the EIA process to programs, policies, and plans. For example, Article 7 of the Ukrainian Law On Ecological Expertiza requires that state ecological expertizas and accompanying EIA requirements be applied to legislation and regulations relating to activities posing an "increased ecological hazard." In addition, the MEPNS has issued an order stating that as a rule, planning documents (at the republic, region, oblast, city, and district levels) should [31 ELR 10310] include a preliminary environmental impact assessment.²⁵⁷ However, in practice, as in many countries with similar provisions, EIA rarely occurs at this stage.²⁵⁸ The Czech Republic's new EIA law (currently in draft form) will attempt to reverse this trend by expanding on its existing SEA provision.²⁵⁹

Although the Espoo Convention only recommends applying EIA to plans, policies, and programs²⁶⁰ the European Council of Environment Ministers agreed on December 13 on an SEA Directive, which would make SEA a requirement for the EU member states. The directive would extend the existing EIA system for projects to include regional development plans and programs in several sectors, including energy, agriculture, telecommunications, and tourism, but would exempt nuclear power.²⁶¹ The objectives of the SEA Directive are to ensure that an EA is undertaken for covered plans and programs and that the results of the EA are considered in the development, adoption, and implementation of the plans. Its procedural steps largely parallel those of the EU Directive on EIA.²⁶² The SEA Directive has not yet received a second reading from the European Parliament.

The Aarhus Convention requires each party to provide the necessary information to the public and to make provisions for public participation in the preparation of plans and programs related to the environment. Parties are directed to "endeavor" to provide opportunities for public participation in the development of policies relating to the environment.²⁶³ The Aarhus Convention also requires parties to "strive" to promote public participation during the preparation of executive regulations and other legally binding rules that may have a significant effect on the environment.²⁶⁴ To achieve this participation, the convention suggests that the following steps be taken: fixing a time frame for effective participation; publishing or making draft rules publicly available; and giving the public an opportunity to comment.²⁶⁵ The result of public participation in regulation and rule-drafting "shall be taken into account as far as possible."²⁶⁶

According to its terms, NEPA also applies to official policies, plans, and programs as well as to projects.²⁶⁷ However, trade agreements have generally been exempted from the EIS requirements. First, courts have noted the absence of clear congressional intent to apply domestic regulations abroad and the presumption against extraterritorial application of U.S. statutes in foreign jurisdictions.²⁶⁸ In addition, an attempt to apply NEPA to U.S. action overseas risks infringing unconstitutionally on the foreign policy powers of the U.S. executive branch of the government. Courts may sidestep the issue of congressional intent to extend NEPA extraterritorially by seizing on other reasons why an EIS is not required. For example, in Public Citizen v. U.S. Trade Representative,²⁶⁹ Public Citizen sought judicial review of the Office of the U.S. Trade Representative's failure to prepare an EIS for the North Atlantic Free Trade Agreement (NAFTA). It based its claim on the APA, which provides for the review of "final agency action."²⁷⁰ The federal court of appeals held that the completion of NAFTA negotiations was not "final agency action" subject to judicial challenge until the President submitted the agreement to Congress, which he was not obligated to do. And because the President's actions are not "agency action," they are not subject to review under the APA.²⁷¹

By an Executive Order issued on November 16, 1999, President Clinton proclaimed that the United States is committed "to a policy of careful assessment and consideration of the environmental impacts of trade agreements. The United States will factor environmental considerations into the development of its trade objectives." Certain agreements, including comprehensive multilateral trade rounds, bilateral or plurilateral free trade agreements, and major new trade liberalization agreements in natural resource sectors, will require an environmental review. Although the focus of environmental reviews will be on domestic impacts: "As appropriate and prudent, reviews may also examine global and transboundary impacts."²⁷²

C. Regionalization and Harmonization of EIA Laws

The EU's interest in harmonization of EIA and other environmental laws influences not only the current EU member nations but also candidate countries. In 1997, the EU invited the Czech Republic, Hungary, and Poland to apply for full EU membership. One required component of a membership application is demonstrating the compatibility of national laws, including environmental laws, with EU standards. The importance of this requirement is illustrated by the EU's recent offer to review the Czech Republic's new draft EIA law. The new law, which is intended to replace the 1992 EIA law, was recently approved by the Czech Cabinet of Ministers and is scheduled to be introduced to the Czech Parliament. The draft law aims to bring the Czech Republic's EIA laws into full compliance with EU standards. It also strives to be compatible with the Aarhus and Espoo Conventions.²⁷³

[31 ELR 10311]

D. EIA and Internationally Financed Projects

International financial institutions, such as the World Bank, require their borrowers to conduct EAs for proposed projects that may have significant adverse effects on the environment.²⁷⁴ The assessment is designed to minimize the adverse environmental effects of the project, improve its design and implementation, and ensure that World Bank-financed projects comply with the relevant international environmental laws. For some projects, financing is conditioned on the development of environmental management plans (EMPs) that outline the measures and actions that are required during the project's implementation in order to minimize and mitigate the adverse environmental impacts.²⁷⁵ These EMPs should include a description of what the anticipated environmental impacts are, how institutional responsibilities will be apportioned, where the funding for implementation will come from, and what types of external assistance will be available to the host country, if requested.²⁷⁶ The EMP is then incorporated into the project agreement and depends upon the host country to monitor its implementation.²⁷⁷ Over the last decade, the World Bank has been expanding its strategy to include looking beyond the environmental concerns from specific projects. It plans to continue this expansion and "systematically include environmental analyses in the economic analyses it conducts before it approves loans."²⁷⁸

In addition to the World Bank's own initiatives to foster EIA, the U.S. House of Representatives has introduced a bill that would reduce U.S. funding to the World Bank if it approves projects that are likely to have a significant adverse environmental impact, as determined by EPA or USAID. The bill also would require the U.S. executive director at the World Bank to oppose any project for which the World Bank has not made the EA, feasibility studies, and other information available for at least 120 days prior to a final decision by the World Bank board.²⁷⁹

IV. Conclusion

The challenge of incorporating EIA concepts into the expertiza process is not uniquely Ukrainian. Rather, it is a product of the ongoing transition in the newly independent states. The Soviet legacy of technocratic expert review is often at odds with implementation of basic EIA concepts that require openness and broad public participation. In order for EIA to become an effective tool of preventive environmental policy, more is required than revised legislation. The introduction of EIA principles must be accompanied by the establishment of basic political and administrative structures,²⁸⁰ as well as a climate that encourages participation. Within this framework, the joint efforts of developers, public interest groups, and government authorities are needed to make the EIA process function as intended. Yet these three crucial sectors have not yet proven able to fully contribute or engage in the process.²⁸¹

As EPA's pilot project has demonstrated, Ukraine's interest in reevaluating its ecological expertiza laws could be addressed either by using existing legal authority to the fullest extent or by enacting new legislation. In either case, Ukraine might choose to draw on internationally recognized components of EIA to strengthen its existing environmental review process, with special attention given to areas that have not been fully developed in the past. These include:

* Scoping. A scoping process that determines, on a case-by-case basis, the issues and impacts that the EIA documentation will analyze and assess can guide the EIA process and contribute to its effectiveness. An important component of scoping in Ukraine could be incorporating public input through scoping meetings conducted well in advance of the document preparation.

* Alternatives Analysis. The EIA documentation should result in a decision that is based on sound science resulting from comprehensive consideration of the proposed project and its alternatives, possibly including the "no-action" alternative. Full consideration of the alternatives and their environmental impacts will help clarify the choices available to decisionmakers.

* Increasing Public Participation. Specific, detailed procedures for public participation in all stages of the EIA process can help guarantee that citizens will be included in the decisionmaking process. First, screening decisions could be made available to the public and subject to review. Likewise, increasing public participation at the scoping stage through the use of scoping meetings could ensure that local concerns are addressed and local knowledge gathered, ultimately resulting in a more efficient and effective EIA process. Public availability and review of the EIA documentation are critical components of most effective EIA laws, and can include public hearings to discuss the EIA documentation. Finally, response to, or incorporation of, public comment by the competent authority can make public participation more meaningful.

* Post-Decision Oversight. Enforcement measures are important to ensure that EIA procedures are complied with, that the decisions satisfy the substantive command of its ecological expertiza laws, and that the terms of the decision, including any mitigation requirements or other conditions, ultimately are adhered to by the project proponent.

[31 ELR 10312]

This Article introduced some of the issues and decisions that many countries have faced in developing their own EIA laws. As Ukraine revisits its ecological expertiza laws, it may decide to draw upon the EIA experience of other countries and tailor components of other EIA laws so that they may be useful to Ukraine. The atmosphere of cooperation between EPA and Ukrainian local, regional, and national organizations in the execution of the EIA demonstration project in Ivano-Frankivsk, coupled with the continuing discussion of EIA, signify that such revisions to Ukrainian law could be made, should Ukraine decide that such revisions are timely and desirable.

1. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

2. See, e.g., United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, Denmark, June 1998 (ratified Nov. 18, 1999) [hereinafter Aarhus Convention]; UNECE Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, Finland, February 1991, 30 I.L.M. 802 (ratified Mar. 19, 1999) [hereinafter Espoo Convention].

3. Council Directive 85/337/EEC of 27 June 1985 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, as amended by Council Directive 97/11/EC of Mar. 3, 1997 [hereinafter EU Directive].

4. World Bank Operational Directive 4.01, Environmental Assessment (1989), as amended by OP/BG/G 4.0 (1996).

5. Oleg Cherp & Norman Lee, Evolution of SER and OVOS in the Soviet Union and Russia (1985-1996). 17 ENVTL. IMPACT ASSESSMENT REV. 177, 189-90 (1997).

6. Id. at 182.

7. Id. at 190-91.

8. Law of Ukraine on Environmental Protection, No. 1264, June 25, 1991, arts. 26-30, 51 [hereinafter Law of Ukraine on Environmental Protection]. Please note that all references to Ukrainian law are to English translations of thelaw and may not reflect the exact meaning of the Ukrainian legislation.

9. Law of Ukraine on Ecological Expertiza, No. 46/95—BP, Feb. 9, 1995, art. 20 [hereinafter Law of Ukraine on Ecological Expertiza].

10. Id. art. 24; Ministry of Environmental Protection and Nuclear Safety (MEPNS), Order No. 55 on Instructions on Conducting State Ecological Expertiza, at 1.2, 2 (June 7, 1995) [hereinafter MEPNS Order No. 55]; Cabinet of Ministers of Ukraine, Resolution No. 870 on Submitting Documentation for a State Ecological Expertiza (Oct. 31, 1995).

11. Law of Ukraine on Environmental Protection, supra note 8, art. 28; Law of Ukraine on Ecological Expertiza, supra note 9, art. 9.

12. The new Minister of Ecology and Natural Resources is Ivan Oleksandrovych Zaiets.

13. See, e.g., Law of Ukraine on Ensuring the Sanitary and Epidemiological Welfare of the Population, No. 4004-XII (Feb. 24, 1994).

14. Law of Ukraine on Environmental Protection, supra note 8, art. 30; Law of Ukraine on Ecological Expertiza, supra note 9, arts. 9, 12, 16, 17, 42.

15. Cabinet of Ministers of Ukraine, Resolution No. 554 on List of Activities and Objects Which Constitute an Increased Ecological Hazard (July 27, 1995).

16. See also MEPNS Order No. 55, supra note 10, at 7 (delineating the obligations of the ecological expertiza and procedures it must follow in reviewing documentation and reaching a conclusion).

17. Law of Ukraine on Ecological Expertiza, supra note 9, art. 5.

18. See id. arts. 15, 32, 36; see also Cabinet of Ministers of Ukraine, Resolution No. 870 on Submitting Documentation for a State Ecological Expertiza (Oct. 31, 1995) (explaining the basic procedures for submitting documentation to the ecological expertiza).

19. The scientific ecological expert assessment (SEEA), or Naukova ekologo-ekspertna ostinka is usually prepared by one of the MEPNS institutes. Upon approval, the SEEA becomes the binding decision. Personal e-mail communication from Volodymr Tykhyy, EIA Project Manager, to Charles Brasher, U.S. EPA Region 5 Associate Director, Office of International Activities (Feb. 3, 2000) (on file with author).

20. Law of Ukraine on Environmental Protection, supra note 8, art. 29.

21. MEPNS, Order No. 59 on the Form and Content of Materials for Assessing the Impact of Planned Economic Activity on the Environment and Natural Resources (EIA) During Various Stages of New Construction, Reconstruction, or Technical Upgrading of Working Industrial and Other Objects (July 8, 1992).

22. State Construction Standards of Ukraine on Form and Content of Documents on Environmental Impact Assessment (EIA) for the Design and Construction of Businesses, Buildings, and Structures, DBN A2.2-1-95, effective 1 July 1995 [hereinafter State Construction Standards of Ukraine].

23. Dmytro Skrylnikov & Iryna Tustanovska, Ukraine, in DOORS TO DEMOCRACY: CURRENT TRENDS AND PRACTICES IN PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING IN THE NEWLY INDEPENDENT STATES 145 (Regional Environmental Center 1998).

24. Personal e-mail communication from Charlie Brasher, U.S. EPA Region 5, Associate Director, Office of International Activities, to Julie Teel, Environmental Law Institute (Feb. 11, 2000) (on file with author).

25. Jerzy Jendroska, Environmental Impact Assessment in Poland in the Light of the EC-Directive 337/85 and NEPA, in JAHRBUCH DES UMWELT-UND TECHNIKRECHTS 215 (1993). However, the EIA currently required for future activities is actually little more than an EIS and not a full EIA procedure. Personal e-mail communication from Jerzy Jendroska, Director, Environmental Law Center, Wroclaw, Poland, to Julie Teel, Environmental Law Institute (Jan. 26, 2000) (on file with author) [hereinafter Jendroska e-mail].

26. Bulgarian Environmental Protection Act, State Gazette No. 86/18 Oct. 1991, amended by SG No. 100.1992; 13 & 63/1995; 13/1997 art. 20(3), available at http://www.eel.nl/.

27. Magda T. Nagy et al., Regional Overview: Central and Eastern Europe, in DOORS TO DEMOCRACY: CURRENT TRENDS AND PRACTICES IN PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING IN CENTRAL AND EASTERN EUROPE 47 (Regional Environmental Center 1998).

28. Law of Ukraine on Environmental Protection, supra note 8, art. 26.

29. Law of Ukraine on Ecological Expertiza, supra note 9, art. 13.

30. Cabinet of Ministers of Ukraine, Resolution No. 554 on List of Activities and Objects Which Constitute an Increased Ecological Hazard (July 27, 1995).

31. Law of Ukraine on the Ratification of Convention, No. 534-XIV (Mar. 19, 1999).

32. EU Directive as amended by Council Directive 97/11/EC of Mar. 3, 1997.

33. EU Directive, supra note 3, art. 2(1).

34. Id. art. 4(1).

35. Id. art. 4(2).

36. Id. art. 4(4).

37. Id. art. 6(2)-(3).

38. Espoo Convention, supra note 2, art. 1(viii).

39. Id. art. 1(3), (5).

40. Id. art. 2(5).

41. Id. app. III.

42. ESPOO CONVENTION SECRETARIAT, SPECIFIC METHODOLOGIES AND CRITERIA TO DETERMINE THE SIGNIFICANCE OF ADVERSE TRANSBOUNDARY IMPACT Annex III (1996), available at www.unece.org/env/eia.

43. Nagy et al., supra note 27, at 47; see, e.g., Hungary Act LIII of 1995 on the General Rules of Environmental Protection, § 69.

44. Peter Kuzvart et al., Czech Republic, in DOORS TO DEMOCRACY: CURRENT TRENDS AND PRACTICES IN PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING IN CENTRAL AND EASTERN EUROPE 165 (Regional Environmental Center 1998) (citing the Czech Republic Act on Nature Conservation and Landscape Protection No. 114/1992 Coll.).

45. 42 U.S.C. § 4332(C), ELR STAT. NEPA § 102.

46. 40 C.F.R. § 1508.27.

47. See, e.g., 40 CFR, pt. 6 for EPA's regulations implementing NEPA.

48. 40 C.F.R. § 1508.27. A similar provision is found at § 7.2(2) of the Dutch Environmental Management Act, which expressly states that activities for which an EIS is required may include those which in connection with other activities may have "serious," adverse affects on the environment, see European Environmental Law Homepage, at http://www.eel.nl/ (last visited Jan. 11, 2001).

49. Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 5 ELR 20311 (D.N.H. 1975); Piedmont Heights Civic Club v. Moreland, 637 F.2d 430, 11 ELR 20257 (5th Cir. 1981); Swain v. Brinegar, 542 F.2d 364, 6 ELR 20609 (7th Cir. 1976); Lathan v. Volpe, 455 F.2d 1111, 1 ELR 20602 (9th Cir. 1971).

50. See, e.g., Preserve Endangered Areas of Cobb's History v. Corps of Eng'rs, 87 F.3d 1242, 26 ELR 21449 (11th Cir. 1996); Piedmont Heights, 637 F.2d at 430, 11 ELR at 20257.

51. 40 C.F.R. § 1507.3(b)(2).

52. Id. § 1501.04.

53. Id. §§ 1501.3, 1507.3.

54. Id. § 1501.4(e).

55. Id. § 1508.13.

56. State Construction Standards of Ukraine, supra note 22, art. 1.6, app. 3.

57. Id.

58. Id.

59. Id.

60. Nagy et al., supra note 27, at 47; Jendroska e-mail, supra note 25, at 221.

61. See, e.g., Hungary Act LIII of 1995 on the General Rules of Environmental Protection. Hungarian law requires the environmental inspectorate to determine the scope of the detailed EIS on the basis of the proponent's application and preliminary EIS. While the inspectorate must involve expert authorities in the scoping process, the public is still not mandatorily included.

62. EU Directive, supra note 3, art. 5(2).

63. Id.

64. Nagy et al., supra note 27, at 48.

65. Id.

66. 40 C.F.R. §§ 1501.7, 1508.22.

67. Dutch Environmental Management Act § 2.17 (The Committee for Environmental Impact Assessment consists of experts serving five-year terms. It was created under the Dutch Environmental Management Act to make recommendations to the Ministers of Environment, Agriculture, Nature Management, and Fisheries with respect to applications for exemption from EIS preparation obligations and the necessary scope of EIS).

68. Dutch Environmental Management Act §§ 7.14-.15.

69. Aarhus Convention, supra note 2.

70. Id. arts. 4-6.

71. Id. Annex I.

72. Id. art. 6(2).

73. Id. art. 6(2)(a)-(e).

74. Id. art. 6(6).

75. Jendroska e-mail, supra note 25, at 218-19, 222.

76. JERZY JENDROSKA, CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW, STATE OF ENVIRONMENTAL LAW: POLAND (Hunter & Weinhouse eds., 1992), at 21.

77. Jerzy Jendroska, Integrated Pollution Prevention in Poland, in LICENSING PROCEDURES FOR INDUSTRIAL PLANTS AND THE INFLUENCE OF EC-DIRECTIVES 104 (Gebers and Robesin eds., 1991).

78. Simon Dresner & Nigel Gilbert, Decisionmaking Processes for Projects Requiring Environmental Impact Assessment: Case Studies in Six European Countries, 1 J. ENVTL. ASSESSMENT POL'Y & MGMT. 105, 109 (1999) (proponent of a Belgian landfill extension and author of the EIA joined environmental groups in raising the issues of EIA credibility when commissioned by the proponent).

79. Law of Ukraine on Ecological Expertiza, supra note 9, art. 47.

80. State Construction Standards of Ukraine, supra note 22, art. 1.5; Law of Ukraine on Ecological Expertiza, supra note 9, art. 33.

81. State Construction Standards of Ukraine, supra note 22, art. 1.5.

82. Jendroska e-mail, supra note 25, at 13.

83. Id.

84. Dresner & Gilbert, supra note 78, at 112.

85. 40 C.F.R. § 1501.3.

86. Id.

87. Id. § 1506.5(b).

88. Id. § 1506.5(c).

89. ENVIRONMENTAL LAW INST., ENVIRONMENTAL IMPACT ASSESSMENT: INTEGRATING ENVIRONMENTAL PROTECTION AND DEVELOPMENT PLANNING 25 (1991).

90. Law of Ukraine on Ecological Expertiza, supra note 9, art. 16.

91. Law of Ukraine on Environmental Protection, supra note 8, art. 30; Law of Ukraine on Ecological Expertiza, supra note 9, art. 42.

92. See, e.g., 40 C.F.R. §§ 1502.14-.15.

93. Law of Ukraine on Ecological Expertiza, supra note 9, art. 36.

94. Id. art. 15; See also Cabinet of Ministers of Ukraine, Resolution No. 870 on Submitting Documentation for a State Ecological Expertiza (Oct. 31, 1995) (detailing the procedures for submitting documentation for a state ecological expertiza).

95. State Construction Standards of Ukraine, supra note 22.

96. Cabinet of Ministers of Ukraine, Resolution No. 554 on List of Activities and Objects Which Constitute an Increased Ecological Hazard (July 27, 1995).

97. State Construction Standards of Ukraine, supra note 22, art. 1.7; see also SERHII KALYNOVSKY, STATE ECOLOGICAL EXPERTIZA AND ENVIRONMENTAL IMPACT ASSESSMENT IN UKRAINE: AN INTRODUCTION (Serhii Kalynovsky is Head of the Department of State Ecological Expertiza Ministry for Environmental Protection and Nuclear Safety of Ukraine).

98. State Construction Standards of Ukraine, supra note 22, app. 1 (informational).

99. Id. art. 1.6.

100. Id. arts. 2.1, 2.2.

101. Id. arts. 2.1, 2.3.

102. Id. art. 2.

103. Id. arts. 3.1-3.3.

104. Id. art. 1.9.

105. E.U. Directive, supra note 3, Annex IV; 40 C.F.R. § 1502.22; Espoo Convention, supra note 2, app. II(g).

106. Law of Ukraine on Ecological Expertiza, supra note 9, arts. 5, 6.

107. Cherp & Lee, supra note 5, at 194-95.

108. State Construction Standards of Ukraine, supra note 22, arts. 2.1, 2.26.

109. EU Directive, supra note 3, art. 3.

110. See, e.g., 42 U.S.C. § 4331, ELR STAT. NEPA § 101(a); 40 C.F.R. § 1508.8(b).

111. 40 C.F.R. § 1508.14.

112. FRANK P. GRAD. 4 TREATISE ON ENVIRONMENTAL LAW § 9.02(1)(a)(ii) (Matthew Bender 1999).

113. Id. (citing Chelsea Neighborhood Ass'n v. U.S. Postal Serv., 516 F.2d 378, 5 ELR 20373 (2d Cir. 1975).

114. State Construction Standards of Ukraine, supra note 22, arts. 2.1, 2.31.

115. EU Directive, supra note 3, Annex IV.

116. 40 C.F.R. § 1508.25(c).

117. To improve the assessment of cumulative impacts, in 1997, the CEQ developed a handbook entitled Considering Cumulative Effects Under the National Environmental Policy Act. The U.S. EPA Office of Federal Activities has issues guidance summarizing the CEQ handbook. The guidance is entitled Consideration of Cumulative Impacts in EPA Review of NEPA Documents (May 1999), available at http://es.epa.gov/oeca/ofa/cumula.html.

118. Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 28 ELR 21073 (9th Cir. 1998).

119. EU Directive, supra note 3, art. 5(3), Annex IV.

120. 40 C.F.R. § 1502.14.

121. State Construction Standards of Ukraine, supra note 22, arts. 2.4-2.7.

122. 40 C.F.R. § 1502.14(a).

123. Id. § 1502.14(d).

124. Id. § 1502.14(e).

125. Id. § 1503.4.

126. Dresner & Gilbert, supra note 78, at 114.

127. 40 C.F.R. §§ 1508.27, 1508.18.

128. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360,19 ELR 20749 (1989); Greenpeace Action v. Franklin, 982 F.2d 1342, 23 ELR 20639 (9th Cir. 1992).

129. National Audubon Soc'y v. Hoffman, 132 F.3d 7, 28 ELR 20318 (2d Cir. 1997).

130. State Construction Standards of Ukraine, supra note 22, arts. 2.10, 2.29.

131. 40 C.F.R. §§ 1502.14(f), 1502.16(h).

132. Id. § 1508.20.

133. Id.

134. See, e.g., U.S. DEP'T OF ENERGY, FINAL HANFORD COMPREHENSIVE LAND-USE PLAN ENVIRONMENTAL IMPACT STATEMENT #DOE/EIS-0222-F (1999), available at http://www.hanford.gov/eis/hraeis/hraeis.htm.

135. Jendroska, supra note 77.

136. Jendroska e-mail, supra note 25.

137. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 19 ELR 20743 (1989).

138. Law of Ukraine on Ecological Expertiza, supra note 9, art. 10.

139. Id. art. 38; State Construction Standards of Ukraine, supra note 22, arts. 1.1, 2.1; MEPNS Order No. 55, supra note 10, arts. 6.3-6.4.

140. Law of Ukraine on Ecological Expertiza, supra note 9, art. 41.

141. Id. art. 4.

142. Id. art. 11.

143. Skrylnikov & Tustanovska, supra note 23, at 145.

144. Law of Ukraine on Ecological Expertiza, supra note 9, arts. 6, 8, 11.

145. State Construction Standards of Ukraine, supra note 22, art. 2.2.

146. Skrylnikov & Tustanovska, supra note 23, at 157.

147. Nagy et al., supra note 27, at 48-49.

148. Jendroska e-mail, supra note 25, at 223.

149. Id.

150. Id. at 311, 314.

151. Id. at 314.

152. Jerzy Jendroska, Poland, in DOORS TO DEMOCRACY: STATUS OF PUBLIC PARTICIPATION PRACTICES IN ENVIRONMENTAL DECISIONMAKING IN CENTRAL AND EASTERN EUROPE 305 (Regional Environmental Center 1998).

153. Note, a new EIA act is currently in the process of approval. It is now in the hands of the Ukraine government's Legislation Council, and afterwards it will goto the Parliament. The English version of the text is not yet available, and significant changes are still expected. Personal e-mail communication from Simona Sulcova, Regional Environmental Center (REC) for Central and Eastern Europe, to Julie Teel, Environmental Law Institute (Nov. 22, 2000) (on file with author).

154. Kuzvart et al., supra note 44, at 155 ("The citizen groups are represented by: civic associations that have been established according to the Act on Civic Associations and that have submitted their own comment … and by ad hoc civic initiative which has more than 500 persons.").

155. Id. at 176.

156. JOHN E. BONINE ET AL., COUNTRY REPORT ON PUBLIC PARTICIPATION: UNITED STATES OF AMERICA 13 (prepared for the 4th Pan-European Environment Ministers Conference, Aarhus, Denmark, June 23-25, 1998); Dutch Environmental Management Act § 7.14.

157. 40 C.F.R. § 1503.1(a).

158. Id. § 1506.10.

159. Dutch Environmental Management Act § 7.20.

160. Id. § 7.22(1)-(3).

161. Id. § 7.22(3).

162. 40 C.F.R. § 1506.6 (c)-(f); Freedom of Information Act (FOIA), 5 U.S.C. § 552, available in ELR STAT. ADMIN. PROC.

163. Dutch Environmental Management Act § 7.24.

164. 40 C.F.R. § 1506.6 (c)-(f) (specifies that this requirement is pursuant to FOIA); Dutch Environmental Management Act § 7.22.

165. Law of Ukraine on Environmental Protection, supra note 8, art. 30.

166. Kuzvart et al., supra note 44, at 166; Nagy et al., supra note 27, at 48-49.

167. Nagy et al., supra note 27, at 49.

168. Kuzvart et al., supra note 44, at 166.

169. Nagy et al., supra note 27, at 48-49; see also Kuzvart et al., supra note 44, at 166-67.

170. Espoo Convention, supra note 2, art. 4(2).

171. Aarhus Convention, supra note 2, art. 6(2)(d).

172. Id. art. 6(4).

173. Id. art. 6(2)-(7).

174. Id. arts. 9.1, 9.2.

175. Id. art. 9.

176. EU Directive, supra note 3, art. 6(2).

177. Law of Ukraine on Ecological Expertiza, supra note 9, art. 34.

178. State Construction Standards of Ukraine, supra note 22, art. 2.2.

179. Law of Ukraine on Ecological Expertiza, supra note 9, art. 11.

180. Id.; State Construction Standards of Ukraine, supra note 22, arts. 2.1, 2.2.

181. 40 C.F.R. § 1503.4.

182. Id. § 1503.4(a)-(b).

183. Id. § 1503.4.

184. Required by FOIA, 5 U.S.C. § 552, available in ELR STAT. ADMIN. PROC.

185. 64 Fed. Reg. 3483 n.14 (Jan. 22, 1999).

186. See, e.g., Fish and Wildlife Notice, 64 Fed. Reg. 15372 n. 61 (Mar. 31, 1999).

187. Aarhus Convention, supra note 2, art. 6(8).

188. Espoo Convention, supra note 2, art. 6(1).

189. EU Directive, supra note 3, art. 8.

190. Nagy et al., supra note 27, at 48-49.

191. Law of Ukraine on Environmental Protection, supra note 8, art. 29; Law of Ukraine on Ecological Expertiza, supra note 9, arts. 13, 39.

192. MEPNS Order No. 55, supra note 10, at 11.1.

193. Id. at 11.

194. Law of Ukraine on Ecological Expertiza, supra note 9, art. 43; MEPNS Order No. 55, supra note 10, at 3.13.

195. MEPNS Order No. 55, supra note 10, at 3.13.

196. Id. at 5.1-5.8.

197. Law of Ukraine on Ecological Expertiza, supra note 9, art. 5.7.

198. Id. art. 10.

199. 40 C.F.R. § 1506.10(b)(2).

200. Id. § 1505.2(b).

201. Id.

202. Id. § 1505.2.

203. BONINE ET AL., supra note 156, at 30.

204. Aarhus Convention, supra note 2, art. 6(9); EU Directive, supra note 3, art. 9.

205. Id.

206. Dutch Environmental Management Act § 7.3.

207. Id. § 7.38.

208. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 19 ELR 20749, 20754-55 (1989).

209. Id.; see also Save Our Ten Acres v. Kreger, 472 F.2d 463, 3 ELR 20041 (5th Cir. 1973).

210. See, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984); Town of Orangetown v. Gorsuch, 718 F.2d 29, 35, 14 ELR 20049 (2d Cir. 1983), cert. denied, 465 U.S. 1099 (1984) (stating that the appropriate role of the court is to ensure that the agency take a "hard look" at the environmental consequences that are likely to result from its action and that the agency has "convincingly documented" its FONSI).

211. Law of Ukraine on Ecological Expertiza, supra note 9, art. 44.

212. Id.; see also id. art. 45 (discussing invalidation).

213. Id. art. 50; more generally, Article 9 of the Law of Ukraine grants citizens the right to bring actions for compensation for damage caused to the health and property of citizens caused by environmental impacts.

214. 5 U.S.C. § 706, available in ELR STAT. ADMIN. PROC.

215. 435 U.S. 519, 553-54, 8 ELR 20288, 20296 (1978).

216. BONINE ET AL., supra note 156, at 29.

217. Jendroska e-mail, supra note 25, at 20.

218. See, e.g., Britt v. Corps of Eng'rs, 769 F.2d 84, 90, 16 ELR 20075, 20077 (2d Cir. 1985).

219. See, e.g., Sierra Club v. Marsh, 872 F.2d 497, 504, 19 ELR 20931, 20934 (1st Cir. 1989), stating:

The harm at stake in a NEPA violation is a harm to the environment, not merely to a legalistic "procedure," nor, for that matter, merely to psychological well-being. The way that harm arises may well have to do with the psychology of decisionmakers, and perhaps a more deeply rooted human psychological instinct not to tear down projects once they are built.

Id.

220. CAL. PUB. RES. CODE § 21002 (2001 West).

221. Id.; see also CAL. CODE REGS. tit. 14, div. 6, ch. 3, art. 7, § 15091 (2000) Guidelines for Implementation of the California Environmental Quality Act art. 7, § 15091.

222. Nagy et al., supra note 27, at 49.; ORESTES R. ANASTASIA, USAID ENVIRONMENTAL LAW PROGRAM, COMPARATIVE REVIEW OF ENVIRONMENTAL IMPACT ASSESSMENT LAWS IN CENTRAL AND EASTERN EUROPE: BULGARIA, CZECH REPUBLIC, ESTONIA, HUNGARY, LATVIA, ROMANIA, AND SLOVAK REPUBLIC 17 (1998). For some larger scale projects, the decision may be appealed directly to the Bulgarian Supreme Court within 30 days.

223. Nagy et al., supra note 27, at 49; see also Czech National Council Act on Environmental Impact Assessment, Act No. 244/1992 S.B., art. 11, app. 4 (Apr. 15, 1992).

224. Aarhus Convention, supra note 2, art. 9(2); see also id. art. 2(5), which defines "the public concerned." An NGO is deemed to have a sufficient interest to challenge a decision if it promotes environmental protection and meets "any requirements under national law." Id.

225. Dutch Environmental Management Act § 7.9.

226. Id. §§ 7.39-.41.

227. Id. § 7.9, § 7.42.

228. 40 C.F.R. § 1505.3.

229. Id.

230. Id.

231. 42 U.S.C. §§ 4371-4375, ELR STAT. EQIA §§ 202-206.

232. For current activities and information, see http://www.whitehouse.gov/CEQ/.

233. For a more detailed analysis of the CEQs activities, see GRAD, supra note 112, § 9.01; ENVIRONMENTAL LAW INST., supra note 89, at 33.

234. See supra note 67 for overview of the Committee, created pursuant to the Dutch Environmental Management Act §§ 2.17-.24.

235. Jendroska e-mail, supra note 25, at 224.

236. Id.

237. Id.

238. 40 C.F.R. § 1502.9(c)(1).

239. Nagy et al., supra note 27, at 49.

240. Id. at 50.

241. JENDROSKA, supra note 76, at 9.

242. Nagy et al., supra note 27, at 49-50.

243. Espoo Convention, supra note 2, art. 7, app. V.

244. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 167 (entered into force Nov. 16, 1994).

245. Espoo Convention, supra note 2, art. 2(1).

246. Id. art. 2(1)-(2).

247. Id. arts. 2-6.

248. Id. art. 2(1).

249. Aarhus Convention, supra note 2.

250. Jonas Ebbeson, Innovative Elements and Expected Effectiveness of the 1991 EIA Convention, 19 ENVTL. IMPACT ASSESSMENT REV. 47, 52-53 (1999).

251. EU Directive, supra note 3, art. 7.

252. Law of Ukraine on Ecological Expertiza, supra note 9, art. 51.

253. State Construction Standards of Ukraine, supra note 22, art. 1.8

254. Lieselotte Feldmann, The European Commission's Proposal for a Strategic Environmental Assessment Directive: Expanding the Scope of Environmental Impact Assessment in Europe, 18 ENVTL. IMPACT ASSESSMENT REV. 3 (1998).

255. See, e.g., Simon Marsden, Legislative EA in the Netherlands: The E-Test as a Strategic and Integrative Instrument, 9 EUROPEAN ENV'T 90, 91 (1999) ("Legislative EA," a subset of SEA, is the assessment of legislation and regulations before their passage and implementation. In 1995, the Netherlands developed the "E-test," to assess the environmental impacts of proposed national legislation.).

256. Feldmann, supra note 254, at 4 (quoting European Commissions Environmental Action Plan for 1993-2000).

257. MPENS Order No. 59 on Regulation on the Form and Content of Materials for Assessing the Impact of Planned Economic Activity on the Environment and Natural Resources (EIA) During Various Stages of New Construction, Expansion, Reconstruction, or Technical Upgrading of Working Industrial and Other Objects (July 1, 1992).

258. Oleg Cherp, Environmental Assessment in Transitional Countries, EIA Newsletter No. 17 (1998), available at http://www.art.man.ac.uk/eia/newslet.htm.

259. Stephen Joyce, Proposed EIA Law Fully Harmonized With EUs, Environment Official Says, 22 Int'l Env't Rep. (BNA) 810 (Sept. 29, 1999); see also Czech National Council Act on Environmental Impact Assessment, Act No. 244/1992 S.B., arts. 1, 14 (Apr. 15, 1992) (extending the application of EIA to "concepts").

260. Espoo Convention, supra note 2, art. 2(7).

261. Accord on Strategic EIA Directive, Minimum Criteria for Inspections Reached, 23 Int'l Env't Rep. (BNA) 6 (Jan. 5, 2000).

262. Feldmann, supra note 254, at 3, 8.

263. Aarhus Convention, supra note 2, art. 7.

264. Id. art. 8.

265. Id. art. 8(a)-(c).

266. Id. art. 8.

267. 40 C.F.R. § 1508.18.

268. See GRAD, supra note 112, § 9.06(2) (discussing NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466, 24 ELR 20648 (D.C. Cir. 1993)).

269. 5 F.3d 549, 23 ELR 21471 (D.C. Cir. 1993).

270. 5 U.S.C. § 704, available in ELR STAT. ADMIN. PROC.

271. See GRAD, supra note 112, § 9.06(2) (discussing the extraterritoriality of NEPA in more depth).

272. Exec. Order No. 13141, 64 Fed. Reg. 63169 (Nov. 16, 1999), ADMIN. MAT. 45116 (entitled Environmental Review of Trade Agreements, available at http://www.usai.gov/topical/econ/wto99/.

273. Joyce, supra note 259, at 810.

274. WORLD BANK, WORLD BANK OPERATIONAL POLICY, ENVIRONMENTAL ASSESSMENT (January 1999), available at http://www.worldbank.org/html/extdr/projects.htm.

275. Id.

276. Id. Annex C.

277. John Horberry, Monitoring and Environmental Management Plans in the EA Process Applied to Development Aid Projects, EIA Newsletter No. 12 (Summer 1996), available at http://www.art.man.ac.uk/eia/newslet.htm.

278. World Bank Changing Strategy for Addressing Environmental Impacts, 22 Int'l Env't Rep. (BNA) 798 (Sept. 29, 1999).

279. Bill Would Cut Funding if World Bank Oks Environmentally Harmful Projects, Daily Env't Rep. (BNA), Oct. 4, 1999, at A-1, n. 191.

280. Bjorn Holm-Hansen, Environmental Impact Assessment in Estonia and Norway, 17 ENVTL. IMPACT ASSESSMENT REV. 449, 461 (1997).

281. Cherp & Lee, supra note 5, at 191 (quoting JERZY JENDROSKA & JERZY SOMMER, ENVIRONMENTAL IMPACT ASSESSMENT IN POLISH LAWS (1994)).