Introducing Tools to Promote Environmental Protection and Democracy in Georgia

Introducing Tools to Promote Environmental Protection and Democracy in Georgia

Prepared by: Association Green Alternative

  • The construction of a cement plant is planned close to your home or work place;
  • You have heard that a company may launch operations to explore and process coal, gold or other minerals close to your village or city;
  • A hydro power plant or thermal power plant is going to be built in your settlement;
  • The government is planning to build or refurbish a motorway close to your settlement;
  • The local authority is planning the construction of a new district in your town, thus changing its urban development plan.

Do you want to learn what impact such projects will have on the health and socio-economic condition of you, your family members and your community? Do you want to express your concerns about the risks associated with such projects and plans before the decision is made to go ahead with them? Do you want to avoid and/or mitigate the negative consequences caused by the implementation of plans like this? Do you want decision-making public institutions to consider your ideas on the implementation of projects and plans like theses?

You will have this opportunity when Georgia honours the commitments assumed under the EU Association Agreement (AA) concluded in 2014 and gradually approximates its national legislation with almost 640 EU Directives, including the following three:

  • Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (hereafter the EU Directive on Environmental Impact Assessment);[1]
  • Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (hereafter the EU Directive on Strategic Environmental Assessment) and
  • Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (hereafter the EU Directive on Public Participation).[2]

The deadline for the approximation of Georgian legislation with these directives is 1st September 2017.[3]

What is envisaged by these EU Directives?

These three EU Directives are based on the Precautionary Principle, which is key to sustainable development. This approach implies the following:

  • Actions with controversial or unclear consequences should be avoided (e.g. the introduction of a product or industrial process);[4]
  • Alternatives to these planned actions should be studied and assessed;
  • The burden of proof should be borne by the initiator of the activity – the entity who wants to initiate the plan should prove that unjustified harm and damage will not result;
  • Decision-making public institutions should, using the principles and methods of democracy, either consent to or reject the planned activity.

Hence, the principle is based on the following: harmful environmental impacts should be avoided at the earliest phase of planning. In other words, when an activity is planned, caution should be expressed at the inception phase and we should not allow undesirable consequences to materialise. How can we ensure this? The following EU Directives explain:

  1. EU Directive on Environmental Impact Assessment. This directive requires environmental impact assessments be made for certain projects prior their being given permission to proceed. These impact assessments are carried out to ensure the protection and preservation of the environment, and the prevention, mitigation and/or remediation of any negative impacts arising from the planned projects. The EU Directive lays out the following procedures to achieve this goal:

Initially (at the screening stage), it should be identified whether the planned project should be subject to an Environmental Impact Assessment (EIA). Annex I of the directive lists projects with significant environmental impact (such as the construction of roads and other infrastructure projects, industrial plants of various types, etc.), for which an EIA is mandatory. In addition, Annex II lists activities that may be subject to EIA according to the individual decisions of EU member states (the local authority should decide on a case-by-case basis). Annex III indicates the screening criteria, enabling public institutions to take the appropriate, considered decisions. These criteria should be used to decide whether it is required to carry out an EIA. If it is defined at the screening stage that project does not require an EIA, this decision is published and the process ends.

  • If project requires an EIA the procedures defined in the EU Directive are as follows:
    • The organization implementing the project (the ‘project proponent’) may approach the relevant authority with a request for defining the scope of the EIA (i.e. what issues need to be elaborated in the EIA by the project proponent). This stage is referred to as the scoping stage.
    • The project proponent should draft an EIA report as a result of the environmental impact assessment, which should be developed in line with Annex IV of the EU Directive. At the same time, the report should contain information on potential alternatives to the project, their potential environmental impact and measures to avoid, mitigate and/or remedy such impact. Similar to the screening stage, this stage has a special focus on the study of project alternatives.
    • The relevant decision-making body should make the documents submitted by the project proponent publicly available at different stages of the process (including the EIA Report), as well as the decisions made by the body itself; also it should hold public consultations with relevant institutions and the general public.
    • Ultimately, the authorities should either consent to or reject the project after taking into account the EIA report and public opinion.
  1. EU Directive on Strategic Environmental Assessment (SEA). This directive, with its procedures, is very similar to the EU Directive on Environmental Impact Assessment. The major difference is that – in contrast with the previous directive – this EU Directive is related to the environmental impacts of plans and programmes, rather than projects.[5] The directive is aimed at projecting, assessing and avoiding harmful environmental impacts at a higher level of planning, i.e. when defining plans and programmes. Better strategic decisions should be made in terms of environmental and sustainable development as a result of a SEA..

Major stages of SEAs for plans and programmes do not differ from the EIA procedures for individual projects. In this case also, the directive envisages screening and scoping stages; followed by an actual  environmental impact assessment and report which should provide information on the consequences arising from the implementation of plans or programmes, as well as on the avoidance, mitigation, remedial actions and monitoring of negative results.

Similar to the EIA, the SEA also has a special focus on access to information and consultations. Consultations should be held with relevant public institutions (as well as with those of other countries, if the issue is of a trans-boundary nature) and other stakeholders. The general public should be kept informed on the plans or programmes and should be able to comment on them, provide feedback, and obtain information on decisions reached and comments submitted. Ultimately, the directive obliges authorities to monitor the adherence to plans and programmes after their endorsement, so that any unexpected negative environmental impact is identified in a timely manner.

  1. EU Directive on Public Participation. This directive is related to the procedures surrounding public participation in decision-making on environmental issues. This directive amends others (including the EIA directive) and defines detailed rules for public consultations on EIAs for projects and SEAs for plans and programmes.

What is covered by the current legislation of Georgia?

An EIA instrument has been practiced in Georgia for the last 20 years, starting in 1996. This instrument was dramatically diminished in scope and power following deregulation and liberalisation in 2005-2006. As a result, this instrument was significantly weakened, making it a far cry from the requirements of the EU directives in terms of general principles and approaches. For instance, the current national legislation of Georgia on EIA, in contrast with EU Directives:

  • Does not recognise the screening and scoping stages;
  • The list of projects and activities, which should be subject to an EIA no longer includes a whole set of activities, which may lead to significant negative impacts on the environment and human health. This include such potentially harmful activities as mining; the construction of nuclear power plants; agriculture and food, timber processing; paper, leather and textile production and some type of infrastructure projects.
  • An EIA is obligatory only in cases when projects are implemented by private entities; it is no longer required for public projects.
  • Totally unjustified waivers have been granted for many projects with significant environmental impact in recent years. This means asphalt and mining plants, hydro power plants, landfills and more have never been subject to an EIA;
  • Georgian legislation no longer envisages opportunities for public participation in the decision-making on activities subject to an EIA.

As for the SEA, Georgian law does not recognise this concept at all; hence, there is no obligation to carry out a SEA for plans and programmes.

Irrespective of the fact that public participation in the decision-making processes is one of the major principles promulgated in the legislation of Georgia (specifically, the Law on Environmental Protection, Article 5), it is not applied in practice. This is because, in contrast to the applicable EU Directives, Georgian law does not define specific procedures to ensure the adherence to this principle.

What will the benefits be of approximation with these EU Directives?

Approximation of Georgian legislation with these EU Directives will bring two major benefits to the country. It will lead to the identification and consideration of environmental issues at the earliest stages of decision-making, meaning better, environmentally-sound decisions will be made. This has been shown by many studies, which evaluated the effectiveness of adherence to these EU Directives.[6]

EIAs and SEAs are also often referred to as instruments of democracy, as they enable citizens to be informed and participate in the decision-making processes that affect their environment, health and livelihood. Hence, the second significant benefit of approximation with these EU Directives will be the presence of more practical instruments of democratic governance in Georgia. After the introduction of these instruments and, through procedures promulgated in legislation, citizens of Georgia will be able to directly participate in the governance of the country not only during elections, but also in between elections. Public participation will increase the trust in and credibility of decisions, and will create the pre-conditions for their timely and seamless implementation.

Furthermore:

  • Public awareness will be increased about environmental issues, a pre-condition for making environmental protection a priority for decision-makers;
  • The environment, the population and out natural and cultural heritage will be better protected; it will be easier to avoid of costly mistakes;
  • The reputation of project promoters (including private investors) will improve, as, after passing EIA procedures, they will use less invasive and destructive technologies and methods to protect the environment. This will increase trust towards them and ultimately positively affects their competitiveness;[7]
  • The risk of legal action and conflicts with the people affected by projects (as well as plans and programmes) will be reduced.

Therefore, when Georgian law becomes approximated with the EU Directives described in this paper, citizens of Georgian will gain new opportunities and new challenges thereby. Legislation will enable citizens of the country to take part in the decision-making process on projects, plans and programmes that have significant impact on the environment and daily life of humans, their health and their social and economic condition. Furthermore, it is important to stress that the right to participation in decision-making processes is a tool of democracy. It is essential to routinely apply this tool, and to turn it into an effective instrument, rather than one merely laid out on paper. This will be the key challenge to citizens of the country and the NGO community in the coming years.

Bibliography:

European Commission, 2012. Impact Assessment: Commission staff working paper accompanying the document: Proposal for a directive of the European Parliament and of the Council amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. European Commission, 2012.

GHK, September 2010. Collection of information and data to support the Impact Assessment study of the review of the EIA Directive – Final Report. DG Environment

Maria Berglund, Anneke von Raggamby, September 2007. Horizontal Environmental EC Legislation: A Short Policy Guide. Ecologic – Institute for International and European Environmental Policy, European Communities, 2008.

EU Delegation to Georgia, PARTICIP GMBH, July 2016. Roadmap of Approximation with EU Directives on Environment and Climate Change Response. Ministry of Environment and Natural Resources of Georgia

Assessment of Compliance of the Legislation of Georgia with EU Directives: Horizontal Environmental Legislation by Nino Antadze, 2013; Green Alternative.