Dark page of environmental protection

26-12-2017

Source: materials biz.nv.ua.

One day, a chemical or waste incineration plant that can destroy the entire natural environment and turn your life into hell may be built next to a house where you live.

Do not want to think about this, do you?

To prevent this, the legislation establishes a procedure for assessing the environmental impact when planning such facilities. However, by this time, this procedure has existed on paper, because its application was a pure formality in many cases.

Starting from December 18, this topic will become extremely relevant while being on minds and generating additional revenues for a significant number of lawyers, civil servants and environmental activists. The reason is the entry into force of the Law of Ukraine “On Environmental Impact Assessment”. It is designed to not only meet the social demand for an effective and realistic procedure of assessing the way individual results of human activities will affect the environment, but also update the mechanism for such an assessment. The last point should be implemented under the Association Agreement between Ukraine and the EU, according to which our country committed to implement the Directive 2011/92/EU that regulates relevant issues in the European Union.

The introduction of this reform ran the risk of crossing the line in advance and creating hell not only for city residents or the environment, but also for entrepreneurs while taking cover behind the ideas of environmental protection. For those who are ready to risk their money and other resources by investing in the Ukrainian economy. The example of the United States, where the environmental impact assessment procedure often costs millions of dollars and lasts for years, and keeping this procedure within the bounds of reason becomes the priority of the administration of each president, regardless of his party identification, clearly illustrates such a risk. Of course, we can spend an infinite amount of money on the environment, but the question is just how much we could afford.

In any case, on May 23, our people’s deputies adopted the Law on Environmental Impact Assessment amid emotions and righteous indignation of frequent cases of environmental abuses. At the same time, parliamentarians ignored the practical wisdom about the devil in details, so several critically important and system mistakes of the law at once were simply undetected.

Firstly, the law has extremely failed to list the objects and activities that are subject to impact assessment. Annexes I and II of the Directive 2011/92/EU were taken as the basis of this list. However, according to the European model, Annex II is not subject to automatic application. EU member states either should decide whether each individual project is subject to the environmental impact assessment on a case-by-case basis or establish detailed thresholds for each type of activity listed in Annex II.

In most cases, drafters of the Ukrainian law did so. For example, not just the production of dairy products, but only such production, the volumes of which exceed 20 tons per day, should be subject to the environmental impact assessment. However, whether due to a lack of attention and

being in a rush, or due to errors in the calculations, clear thresholds were established not for all types of activities.

Therefore, it is quite predictable that businesses will face with heavy battles with officials regarding the fact what “deep drilling” means – is it 10, 50, 100, 1000 meters or more? And what is more, does a “long distance” water supply system mean 20 meters, a kilometer or two kilometers? Is it true that the production of any amount of starch, for example, 50 grams, requires a lengthy and costly bureaucratic procedure to assess environmental impacts?

Our people’s deputies deserve particular thanks for the cases, when the list of objects is established by a scheme of object A, object B, object C with characteristics of Y, when it is completely unclear whether the characteristics of Y are related only to object C or both objects A and B as well? For example, according to the law, heat power plants, CHP plants “and other facilities to produce electricity, steam and hot water with a heat capacity of 50 megawatts or more” are subject to the assessment. The question of whether these 50 megawatts are related only to “other facilities” or to both HPP and CHP plants as well will be a matter of argument for a long time.

Secondly, the law creates a problem with the time frame of its application for no reason at all. On the one hand, the law will come into effect on December 18, 2018, and from this date, it is theoretically possible to start carrying out the assessment procedure according to the new law. On the other hand, the law has entered into force since June 18, 2017, and since that date, it has become obligatory for objects and activities, which do not have any permits obtained. However, the issue of what to do with objects and activities, which did not require obtaining permit documents, remains a mystery. For example, they could be started on the basis of a declaration.

In addition, projects that were planned to begin in the transition period between June 18 and December 18, 2018, are almost in a hopeless situation, as the only chance to avoid their freezing is to obtain the state environmental appraisal as soon as possible. Of course, hardly anybody could use such an option or simply to realize this possibility. As a result, many projects that were launched in the “transition period” are now at risk and can be stopped at any time.

Third, and most importantly, the law does not provide a clear benchmark as to what motives government bodies will have during the environmental impact assessment procedure. Accordingly, how it will it be determined what activities should be allowed and which ones should be prohibited.

But this is not the whole story. Prohibition is not the only method environmental officers can use to influence the businesses. The next news for business will be the environmental conditions for activities – individual requirements that will be set by government bodies for each particular project or activity. Moreover, government bodies will be able to determine the amount of compensation businesses will need to pay for damages that will be caused to the environment in the future.

All these decisions will have a significant impact on the attractiveness and profitability of any business project that needs the environmental impact assessment. Unfortunately, it is a thankless task to predict exactly what government bodies will take into account during the assessment. The greatest danger is that, traditionally, in all cases when there is a significant discretion of an official, such an official is guided by motives that have nothing to do with public interests too often.

The environmental impact assessment is an excellent and necessary tool in state regulation. However, it works properly only when the state has a balance between economic and environmental interests. The risks and price of distortions are extremely high. Since regulatory mistakes mean not only unnecessary expenses for businesses, but also they carry a serious risk of discrediting environmental protection and European integration ideas. Therefore, the immediate work to amend the Law on Environmental Impact Assessment is on the agenda. And as of now, we can only hope that the improvement of such a procedure will not be a long story without clear timelines, as it traditionally happens in environmental regulation in our country.

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