Strategic Environmental Assessment - Stylianos Malliaris' Paper

FLETCHER SCHOOL OF LAW AND DIPLOMACY
ILO L223
INTERNATIONAL ENVIRONMENTAL LAW
Fall 2008
Professor D. Wirth
STRATEGIC ENVIRONMENTAL ASSESSMENT IN DECISION-MAKING
TOPIC: The European Union’s Approach to the concept of Strategic Environmental

Assessment: Moving from project oriented Environmental Impact Assessment to the
more holistic, policy tool of Strategic Environmental Assessment? – Analogies with the
United States’ paradigm of Programmatic Environmental Impact Statement – Is the
approach similar?
Stylianos Malliaris, MALD 2010
BOSTON
DECEMBER 2008
Stylianos Malliaris -2-
MALD 2010
Table of contents
I. Introduction - Definitions p. 3
II. Origins of the concept of Environmental Assessment

II.A. The emergence of the concept of Environmental Assessment p. 6
II.B. The need for a Strategic Environmental Assessment p. 7
II.C. Strategic Environmental Assessment in EU countries p. 9
III. EU Directives on Environmental Assessment

III.A. Environmental Impact Assessment Directive p. 12
III.B. Strategic Environmental Assessment Directive p. 15
III.C. Comparison and analysis of the Differences p. 20
IV. US approach on Environmental Assessment at a Strategic level

IV.A. Programmatic Environmental Impact Statement p. 23
IV.B. Comparison with the EU approach p. 25
V. Conclusion p. 28
Bibliography p. 30
Annexes I and II to EIA Directive p. 32

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I. Introduction - Definitions
Environmental Assessment (hereinafter, “EA”) is used as a generic term and can be

defined as the legal instrument of integrating environmental concerns in the process of
decision-making. In particular, it can be seen as the process for the determination of
environmental consequences of a wide range of proposed activities (from specific
projects up to policies and general plans for a specific region) before a final decision
from consenting public authority is issued on this regard. An EA is, therefore, a
comprehensive study of the probable changes in the various socioeconomic and
biophysical characteristics of the environment which may result from a proposed or
impending action. To this end, we should consider environment as including not only the
areas of air, water, plants, and animals, but also other natural and human-modified
features which constitute the totality of our surroundings. To put it differently, the
environment consists in the combination of people’s natural and physical surroundings
and their relationship with these surroundings, hence, including aesthetic, historic,
cultural, economic, and social aspects. All the above referenced elements should be
considered in an EA, the objectives of which could be generally comprised in the
following: (a) to ensure that environmental considerations are explicitly addressed and
incorporated into the development decision making process; (b) to anticipate and avoid,
minimize or offset the adverse significant biophysical, social and other relevant effects of
development proposals; (c) to protect the productivity and capacity of natural systems
and the ecological processes which maintain their functions; and (d) to promote
development that is sustainable and optimizes resource use and management
opportunities.
In this paper we will mainly discuss two forms of EA within the European Union
(hereinafter, “EU”) context: the Environmental Impact Assessment (hereinafter, “EIA”)
and the Strategic Environmental Assessment (hereinafter, “SEA”). EIA is the most
traditional EA tool applied at a project level and can be defined as the public process by
which the likely significant environmental effects of a project are identified, assessed
and, then, taken into account by the competent consenting authority, while affected
citizens are given the opportunity to be consulted prior to the final decision which entitles
the developer to proceed with the project.
The International Association for Impact Assessment (IAIA) has published the IAIA
principles that stipulate best practice for EIA, as well as SEA1. Under these basic
principles, an EIA must be: purposive (informing decision-makers and resulting to
environmental protection), rigorous (applying best practicable science and appropriate
methodologies), practical (providing information and output that assist to the solution of
the respective problems), relevant (providing usable information for decision-making),
cost-effective (achieving statutory objectives under limited time and resources), efficient
(imposing minimum cost burdens in terms of time and finance) , focused (concentrating
on significant environmental effects and key issues), adaptive (adjusting to the realities,
issues and circumstances of the proposals under review), participative (informing and
involving affected publics, whose inputs and concerns should be addressed explicitly in
the decision of the competent authority), interdisciplinary (including feedback from a
1
Posted in the web:
http://www.iaia.org/Members/Publications/Guidelines_Principles/Principles%20of%20IA.PDF
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range of the relevant bio-physical and socio-economic disciplines), credible (being

impartial and objective), integrated (addressing the interrelationships of social,
economic and biophysical aspects), transparent (having clear requirements and ensuring
public access to information and being subject to judicial review), and systematic (fully
considering all relevant information on the affected environment, of proposed alternatives
and their impacts, and of necessary measures for determining and monitoring residual
effects).
SEA is closely related to, but sufficiently distinct from, EIA. It is applied at a prior stage
and in a broader sense, both temporally and geographically, than the EIA (which is rather
related to a single, fixed and prescriptive approach) and can be defined as a range of
“analytical and participatory approaches that aim to integrate environmental
considerations into policies, plans and programmes and evaluate the inter linkages with
economic and social considerations”2. SEA, therefore, can be seen as a systematic, on-
going process for evaluating, at the earliest appropriate stage of publicly accountable
decision making, the environmental quality and consequences of alternative visions
encompassed in policies, plans and programmes (hereinafter, “PPP”) initiatives and
assessing their potential development effectiveness and sustainability, under the spectrum
of the general principle of customary international law of sustainable development3.
2
«Policy: A general course of action or proposed overall direction that a government is or will be
pursuing and that guides ongoing decision making.
Plan: A purposeful forward looking strategy or design, often with co-ordinated priorities, options and
measures that elaborate and implement policy.
Programme: A coherent, organised agenda or schedule of commitments, proposals, instruments and/or
activities that elaborate and implement policy».
Definition of “PPP” in OECD publication, Applying Strategic Environmental Assessment, Good Practice
Guidance for Development Co-operation, DAC Guidelines and Reference Series, 2006.
3
Some illustrative definitions of the concept of SEA that are most often cited in scientific literature include
the following: «A formalized, systematic and comprehensive process of evaluating the environmental
impacts of a policy, plan or programme and its alternatives, including the preparation of a written report
on the findings of that evaluation, and using the findings in publicly accountable decision-making»
Therivel R, Wilson E, Thompson S, Heaney D, Pritchard D., Strategic environmental assessment, London,
UK, Earthscan Publications, 1992, p. 19–20, «… a policy instrument with the aim of ensuring that
environmental considerations are taken into account in decision-making. As far as possible, SEA should be
applied with reference to and co-ordinated with other comparable instruments as well as being integrated
with the relevant policy and plan-making processes», Sadler B, Brooke C., Strategic environmental
appraisal, Report of the International Seminar, 27–29 May 1998, Lincoln, UK. West Yorkshire, UK,
Department of the Environment, Transport and the Regions, 1998, p. 3, «… a structured, proactive process
to strengthen the role of environmental issues in strategic decision-making» Verheem RAA, Tonk JAMN.
Enhancing effectiveness, strategic environmental assessment: one concept, multiple forms, Impact Assess
Proj Apprais 2000, p. 177, «a systematic, decision aiding procedure for evaluating the likely significant
environmental effects of options throughout the policy, plan or programme development process, beginning
at the earliest opportunity, including a written report and the involvement of the public throughout the
process» Sheate W, Dagg S, Richardson J, Aschemann R, Palerm J, Steen U., SEA and integration of the
environment into strategic decision-making, Vol. 1, Final Main report to the European Commission. DG
XI, 2001a, p. 7, «an integrated, structured decision aid process, aiming to assess the environmental effects
of strategic proposals (e.g., policies, plans and programmes) and their options, and to recommend possible
measures to reduce negative effects or to enhance positive ones. This process should include a written
report and public involvement. Relevant and accountable authorities should use the conclusions of this
process in their decision-making process», Risse N., Crowley M., Vincke Ph., Waaub J-P., Implementing
the European SEA Directive: the Member states’ margin of discretion, Environmental Impact Assessment
Review, 23 (2003), p. 454-455.
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Based on the above, SEA provides a programmatic view of the “bigger picture” and can
be distinguished from EIA, which has been applied to a large extent in many countries
world-wide to address the environmental threats and opportunities of specific projects but
cannot be easily applied to PPP. SEA is not a substitute for, but complements, EIA and
sets a framework for future development consent of projects in a particular region.
Ideally, a specific EIA should be prepared once a policy has been established by means of
a SEA. Let me use an example: if a government agency decides to develop a national
nuclear power program, an EIA can be used to minimize the environmental damage from
building specific nuclear power plants, but it would be unable to address in practice the
more fundamental questions regarding the overall design of the national nuclear power
program and the parameters of its necessity, efficiency and sustainability. In contrast, a
SEA could effectively lay out the overall policy and investigate the programmatic
impacts associated with such a policy.
But in the second half of the 1990s, it was generally recognised that the scientific SEA
debate had significantly failed to address how SEA relates to decision-making processes4.
As PPPs are based on political decisions, it is the specific logic of decision-making that
an efficient SEA should address to5. To this end, the new concept of analytical strategic
environmental assessment (hereinafter, “ANSEA”) was developed focusing on the
quality of the decision-making process rather than on the impacts of the decision, the
prediction of which might be actually unfeasible at the strategic level. The key element of
ANSEA is the shift from an analysis of the environmental consequences of a decision to
an analysis of the priorities, issues and values that govern decision making.6.
The aforementioned concepts of EIA and SEA will be the nucleus of this paper that aims
to highlight the transition of EA from the narrow perspective of EIA to the broader
evaluation that a SEA seeks to provide to decision-makers. My endeavour is confined
within the EU legal system, while at the same time I will try to draw a comparison to the
concept of Programmatic Environmental Impact Statement (hereinafter, “PEIS”) that can
be identified as the United States’ legal concept that is analogous to SEA.
4
Thissen W., Strategic environmental assessment at a crossroads. Impact Assess Proj Apprais 2000, p.
174-176.
5
Dalkmann H., Herrera R.J., Bongardt D., Analytical strategic environmental assessment (ANSEA)
developing a new approach to SEA, Environmental Impact Assessment Review, 24 (2004), p. 386.
6
Caratti P., Dalkmann H., Jiliberto R., Analyzing Strategic Environmental assessment, Towards Better
Decision-Making, Edward Elgar, Cheltenham, UK, 2004, p. 1.
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II. Origins of the concept of Environmental Assessment

II.A. The emergence of the concept of Environmental Assessment
The procedural origins of EA are to be traced in the rational planning theory that was
developed in the late 1950’s and discussed in the following decades. At this stage, the
consideration of environmental aspects in strategic and project decision making aimed to
mitigating unnecessary problems rather than achieving objectives. With the enactment of
one of the most important pieces of American environmental legislation, National
Environmental Policy Act (NEPA), on January 1, 1970, formal EA was introduced as a
pro-active legal tool for determining environmental consequences before practical action
is taken7.
The said statute contains a requirement for examining the likely environmental
implications of, and possible alternatives to, legislation and other major federal actions
that could significantly affect the quality of the human environment8. Beginning with the
landmark case of Calvert Cliffs (1971)9, a precedent was established that all agencies
must prepare a detailed statement (Environmental Impact Statement, hereinafter “EIS”)
in compliance with the above referenced NEPA’s action-forcing provision.
Soon after the enactment of NEPA, the international community began to realize the
usefulness of the EA tool for an environmentally sound development and many
governments and legislatures across the world adopted their own versions of national
environmental policies and assessment procedures. Formal EIA requirements were soon
introduced in Canada (Environmental Assessment Review Process, 1973), Australia
(Environmental Protection Act, 1974), Malaysia (Environmental Quality Act, 1974), the
Philippines (Presidential Degree No. 1586/1978) and the People’s Republic of China
(Provisional Environmental Protection Law, 1979). In Europe, France (National
environmental assessment Legislation, 1976) was the first country to introduce EIA
requirements10. Although EIA legislation was proposed in the European Community’s
Second Action Programme on the Environment (1977), many countries fiercely opposed
the suggestion and only after eight years of heated debate did EU issue the EIA Directive
85/377/EEC. that came into effect in July 1988 and has since been twice amended. EIA
requirements were then introduced by the vast majority of European (EC and non-EC)
countries.
Nowadays, almost all developed countries have mandatory environmental impact

procedures, while the number of developing countries with same procedures is also
increasing rapidly. According to information gathered by United Nations Environmental
Program (hereinafter, “UNEP”), EIA provisions now exist in the framework
environmental legislation of 55 developing countries A major factor is the use of EIA by
international development banks and aid agencies. The World Bank in 1989 established
rules requiring that an EA process should be prepared as part of its loan appraisal process
7
Fisher Th., Strategic Environmental Assessment in post-modern times, Environmental Impact Assessment
Review, 23 (2003), p. 156.
8
NEPA, Title I, Sec 102(2) (C).
9
Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109, 1117 (D.C. Cir. 1971).
10
Eccleston Ch., NEPA and Environmental Planning, Tools, Techniques and Approaches for Pacticioners
CRC Press, Taylor&Francis Group, 2008, p. 300.
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and issued in 1991 a publication providing practical guidance for the preparation of EIA
documents for various types of development projects11. The Bank’s most recent
procedure categorizes project based on the magnitude of their impacts and provides for
different levels of EA to be applied to investment projects per category «to improve
decision-making and ensure that the project options under consideration are
environmentally sound and sustainable»12. In 1974, the Organization of Economic
Cooperation and Development (hereinafter, “OECD”) recommended that its member
states adopt NEPA-like EA processes and it now uses an EIA process similar to that of
NEPA in granting aid to developing nations13.
In an International Environmental Law context, it still remains doubtful if a customary

norm has emerged obliging states to conduct EA at a national level, when the likely
impacts of planned activity are solely confined within the national borders Although a
widespread and consistent states’ relevant practice can easily be traced, it is nonetheless
less evident the extent to which the element of opinion iuris exist (i.e., the causation
between practice and the belief that this obligation of conducting an EA is mandated by
international law). With regard to soft law documents, the requirement of a state to
conduct EIA in respect of activities that are likely to have a significant adverse impact on
the environment has been reflected in Principle 17 of the Rio Declaration on
Environment and Development, Article 5 of the Legal Principles for Environmental
Protection and Sustainable Development, adopted by the Experts Group on
Environmental Law of the World Commission on Environment and Development (“Our
Common Future” or the Brundtland Report), and in the 1987 Goals and Principle of
Environmental Impact Assessment developed under the auspices of UNEP. Such a
requirement in the context of transboundary impacts has also been incorporated in several
regional agreements, e.g. UN/ECE Convention on Environmental Impact Assessment in a
Transboundary Context (Espoo Convention, 1991) and various Regional Agreements
concluded under UNEP’s Regional Seas Programmes and resolutions of international
bodies, e.g. UN/ECA Council Resolution on Environmental and Development in Africa
(1984). Officials for the North American Free Trade Agreement (NAFTA) have also
established a requirement to use a NEPA-like process in evaluating transboundary
impacts of proposed projects “likely to cause significant adverse transboundary effects.”
between the borders of the United States, Canada, and Mexico.
II.B. The need for a Strategic Environmental Assessment
The EIA concept developed over the past 35 years and increased the level of attention
given to the environment in the planning of development projects. However, the
emphasis on individual development projects means that the cumulative and indirect
effects of individual development projects are rarely adequately assessed. This
incapability of EIA to holistically address environmental concerns in the decision-making
process catalysed the move towards undertaking an EA at the PPP level in the form of a
11
World Bank (1991). Environmental Impact Assessment Sourcebook (vols. 1–3), World Bank,
Washington, D.C.
12
Operation Directive 4.01 on Environmental Assessment.
13
OECD, Good Practices for Environmental Impact Assessment of Developing Projects, Development
Assistance Committee, Paris, 1992.
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SEA that establishes a framework for an EIA for specific project, thus, enabling the
environmental assessment of continuous planning tiers, from policies to individual
projects, and full coverage of relevant alternatives.
It was again in the United States first that the government realized this need for a broader
approach. As we discussed earlier, NEPA applies to legislation and other major Federal
actions including PPP, as per the interpretation of the Council on Environmental
Quality14 (hereinafter, “CEQ”). CEQ regulations mandate that an EIS should be prepared
for federal actions of a broad scale, such as new programmes or legislation15. The new
concept that will be analysed below is called Programmatic Environmental Impact
Statement (hereinafter, “PEIS”) and has served as a means of facilitating long range
planning and dealing with the cumulative effects of tiering actions requiring the regular
EIS of projects. It was originally the United States Supreme Court that came up with the
idea of the need for what came to be called a PEIS, which was only after codified in CEQ
regulations. In particular, the Supreme Court first acknowledged the existence of
different types of EISs corresponding in breadth to the type of proposed federal action16.
Subsequently17, the Court ruled that an EIS of a national scope was an «indeed legitimate
undertaking»18, although it may bear little resemblance to a project or site-specific local
EIS. The Court referred to this EIS for a national plan as “comprehensive impact
statement” and concluded that the EA obligation established by NEPA may require a
PEIS in cases when several proposed actions that will have cumulative or synergistic
environmental impacts are pending at the same time before an agency that ought to assure
consideration of these impacts in its decision-making process.
Soon after the introduction of PEIS in the United States, other countries around the world
and particularly in Europe developed similar mechanisms to integrate environmental
considerations in the decision-making stage. An equivalent environmental appraisal
model was established in 1991 in United Kingdom requiring that policy and plan
evaluations are undertaken to define and take into consideration environmental impacts.
A slightly different model of SEA was followed in other countries, such as New Zealand
and Netherlands consisting in undertaking SEA as an integral part of a comprehensive
policy and plan setting process. The practice followed in New Zealand is to incorporate
environmental policy within the governmental system, by means of determining which
combination of objectives, policies and rules best achieves the purpose of the 1991
Resource Management Act, namely, a comprehensive law with the main aim of
promoting sustainable management of the environment. On the other hand, the
14
Congress established CEQ within the Executive Office of the President following the enactment of
NEPA. Additional responsibilities were provided by the Environmental Quality Improvement Act of 1970.
CEQ coordinates federal environmental efforts and works closely with agencies and other White House
offices in the development of environmental policies and initiatives. In addition, CEQ reports annually to
the President on the state of the environment; oversees federal agency implementation of the environmental
impact assessment process; and acts as a referee when agencies disagree over the adequacy of such
assessments.
15
The relevant CEQ regulations are analytically cited below at Section IV.A.
16
Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures (SCRAP),
422 U.S. 289 (1975), decided June 24, 1975, at 322.
17
Kleppe v. Sierra Club, 427 U.S. 390, 398-416 (1976), decided June 28, 1976.
18
Shea M. David, The Project Bioshield Prisoner’s Dilemma: an Impetus for the Modernization of
Programmatic Environmental Impact Statements, Boston College Environmental Affairs Law Review,
2006, Volume 3, p. 707.
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Netherlands have used a tool called Strategic Environmental Impact Assessment (a

statutory requirement under the 1987 Environmental Impact Assessment Act) to assess
significant impacts prior to the adoption of large scale land-use and sectoral plans and
programmes19.
In general, there are three main elements associated with each SEA system constituting a
framework to the realities of policy decision making20:
1. The policy-making/planning dimension, under which two planning approaches exist:
the linear planning process (aiming the objective of the policy) and the cyclical planning
process (based on the problems that have to be dealt with).
2. The decision-making dimension, defining priorities (either economic or
environmental – i.e., the sustainable management of natural resources).
3. The environmental assessment dimension, addressing the form and integration of EA
principles into traditional PPP decision making.
Based on these three elements, SEA is to be treated not as an extension of the EIA of
projects, but as a new methodological field with its own foundations and assessment
processes, which focus on the quality and consistency of the decision-making procedure
against a set of environmental objectives. To sum up, the emergence of the SEA approach
took the EA a step further, moving it from a short-term and local scale situation to a
broader horizon. Instead of trying directly to improve the environmental quality of a
specific decision (classic EIA objective), this approach aimed to improve the quality of
the decision process through the incorporation of general environmental values.21
II.C. Strategic Environmental Assessment in EU countries22
The concept of SEA in Europe pre-existed before the adoption of EU Directive

2001/42/EC that aimed to set a minimum of common principles of SEA within the EU
legal system. A synoptic overview of the prior SEA regulations of the European main
jurisdictions23 will help us understand the approach later employed by EU on its SEA
Directive.
United Kingdom: The UK developed a strategy of integration of SEA into governmental

policy and planning processes known as “Greening Government”. Since 1991, UK had a
non-statutory system of environmental appraisal, which covered central government
19
Decision-Making, Edward Elgar, Cheltenham, UK, 2004, p. 10-12.
20
Partidαrio, M. (1999), Strategic Environmental Assessment: Principles and Potential, in J. Petts (ed.)
(2000), Handbook of Environmental Impact Assessment, Volume I, London: Blackwell Science.
21
Decision-Making, Edward Elgar, Cheltenham, UK, 2004, p. 23-24.
22
Based on ICON, IC Consultants, SEA and Integration of the Environment into Strategic Decision-
Making, Final Report to the European Commission, available online at:
http://ec.europa.eu/environment/eia/sea-studies-and-reports/sea_integration_country.pdf
23
As a matter of choice, the paper confines its research in the biggest states in terms of populations in the
EU system at the beginning of the 21st century (i.e., at the time of the adoption of the SEA Directive EU
had only 15 members) that had incorporated in their legal order the SEA tool, namely, United Kingdom,
the Netherlands, France, Germany and Spain.
Stylianos Malliaris - 10 -
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policies24, regional25 and local authority land-use plans26 and plans and programmes for
various sectors, but there were no requirements for a formal report or public participation.
To this end, Green Ministers appointed in each department have the competence to
overlook the department’s activities and enhance its appraisal of policies.
Netherlands: The Dutch SEA system has two tiers, which consist of an environmental test
(“E-test”) for draft legislation and a strategic environmental impact assessment (“SEIA”).
The objective of the E-test, established in 1995, was to assess the environmental impacts
of various forms of legislation, policy plans and regulations. The E-test is carried out in a
three-phase procedure: (i) the screening/scoping phase, where the legislative-regulative
proposals are selected for the E-test and the questions to be addressed are identified, (ii)
the documentation phase, where the outcome of the assessment is documented in the
Explanatory Note to the draft legislation and (iii) the review phase by the Ministry of
Justice where, if the assessment is deemed to be appropriate, a decision is made to submit
the E-test to Dutch Cabinet. In contrast, the SEIA is a statutory requirement under the
1987 Environmental Impact Assessment Act providing that SEIA, which uses the same
procedures as project level EIA, is applied to decisions relating to site selection and
strategic planning that may have significant impacts on the environment, such as waste
management and land use plans.
France: The Decree of 12 October 1977 made EIA a mandatory requirement for projects
which are included in Zones of Co-ordinated Planning. While there was no requirement
for EIA to cover policies, plans and programmes, the French Administration introduced
the concept of Strategic Impact Assessment (Etudes Stratégiques d’Impact sur
l’Environnement - “ESIE”), the French equivalent to SEA using the same procedural
content with EIA, to cover Municipal Zoning Plans and Urban Areas Zoning Plans.
Moreover EA at policy level was introduced under the Decree of 16 July 1990 providing
than for any proposed law that was deemed to have environmental impacts an ESIE was
required.
Spain: At the federal national level integration of environmental considerations in

decision-making was very limited. It was only in the area of Regional Development Plans
(i.e. seeking Structural Funds) that a SEA was required pursuant to the provisions
established in Council Regulation 1260/1999. Nevertheless, at the “state” level, the
Autonomous Communities of Castilla-La Mancha, Castilla y León and Basque Country
had developed SEA legislation. In particular, with regard to Castilla-La Mancha, Law
5/1999 (8 April) on Nature Protection requires that a number of a number of plans and
programmes were subject to SEA (namely, watering, agricultural or cattle-keeping
development or transformation, forestry, wastes, wastewater treatment, land planning,
industrial, energy, mining, roads, transport, hydraulic works and tourism). The SEA
24
Policy Appraisal and the Environment (“PAE”): included checklists and screening criteria as well as
points of contact. PAE was to be used side by side with the developing policy and emphasis was placed on
quantifying and valuing the costs and benefits.
25
Sustainability Appraisal of Regional Planning Guidance: It provided the framework for Local Authority
development plans and established an objective-led approach by setting targets and indicators as part of the
appraisal.
26
Environmental Appraisal of Development Plans (EADP): - Planning Policy Guidance Note 12 on
Development Plans provided that all development plans (Local Authority Land Use Plans) must be
environmentally appraised.
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procedure in Castilla y León was defined in Law 8/1994 on Environmental Impact

Assessment and Environmental Audits, which establishes the sectors for which SEA is
mandatory (namely, forestry, tourism, agriculture, cattle-keeping, industrial, energy,
mining, roads, transport, land use planning, industrial wastes, urban wastes, cattle-
keeping, hospital wastes and others as deemed necessary by the government of Castilla y
León). The SEA procedure includes a voluntary scoping phase, a public participation
phase (undertaken by the promoter of the PPP) and the final decision. Finally, in the
Basque Country the SEA legislation is defined in Law 3/1998 on Environmental
Protection, which provides for the plans and programmes subject to SEA (namely, land-
use planning guidelines, land-use plans, sectoral territorial plans and other plans and
programmes with territorial impacts, urban land-use plans and their modification
affecting non-urban lands, subsidiary norms for planning and their modifications which
affect non-urban lands, special plans and their modifications which affect non-urban
land), but entails no specific procedures for the implementation of the SEA.
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III. EU Directives on Environmental Assessment

III.A. Environmental Impact Assessment Directive
EU has established a mix of mandatory and discretionary procedures to assess

environmental impacts. Directive (85/337/EEC) on Environmental Impact Assessments
was first introduced in 1985 and was amended in 1997 (Directive 97/11/EC). The
Directive was amended again in 2003 (Directive 2003/35/EC), following EU signature of
the 1998 Aarhus Convention (UN/ECE Convention on Access to Information, Public
Participation in Decision Making and Access to Justice).
The content of the EIA Directive can be shortly analyzed in the following sequential
steps: (i) Screening, (ii) Scoping, (iii) Writing the EIA Report, (iv) Review of the Report
and (v) Decision making.
(i) Screening: Screening is defined as “that part of the EIA process which determines
whether an EIA is required for a particular project” 27. In common with most EIA
systems around the world, the EIA Directive requires an EIA to be carried out with
regard to projects that are likely to have significant effects on the environment (by virtue,
inter alia, of their nature, size or location) (Article 2). The Directive provides two lists of
projects covered by Article 2 and these are listed as Annex I and Annex II projects28.
Article 4 (1) requires that all projects listed in Annex I are made subject to EIA on a
mandatory basis. For Annex II projects Member States must first determine whether there
are ‘likely’ to be significant environmental effects and, in the affirmative case, the full
EIA procedures of the Directive apply. To facilitate this screening decision the Directive
provides Member States with a certain amount of discretion to determine the basis on
which significant environmental effects should be identified on a case by case basis or by
establishing thresholds. Annex III provides some formal guidance to this regard, setting
three broad selection criteria: the characteristics of projects (including size, use of natural
resources, and waste production); the location of projects (environmentally sensitive
areas need special protection); and the characteristics of the potential impact (including
its size, complexity and likely duration). However, in the Grosskrotzenburg case29 and
the Dutch Dykes cases30 the European Court of Justice (hereinafter, “ECJ”) ruled that the
EIA Directive “has a wide scope and a broad purpose” and discretion given to Member
States was considerably limited by clarifying the margin within which the Member States
may operate (Member States could not use thresholds to exclude whole classes of
projects, but thresholds could be used to exclude very small or minor projects).
27
Council of European Community (2001) Environmental Impact Assessment Guidance on Screening,
Brussels, available online at
http://ec.europa.eu/environment/eia/eia-guidelines/g-screening-full-text.pdf.
28
The list of projects provided by Annexes 1 and 2 are attached on the end of this paper.
29
C-133/94, Commission v Belgium – The ECJ ruled that ‘whether a chemical installation is integrated
does not depend upon its processing capacity or on the type of chemical substance processed in it but on the
existence of interlinked production units constituting in terms of their operation a single production unit’.
30
C-72/95, Kraaijeveld case – The ECJ found that the expression canalization and flood-relief works in
point 10(e) of Annex II to EIA Directive should be interpreted as including not only construction of a new
dyke but also modification of an existing dyke involving its relocation, reinforcement or widening,
replacement of a dyke by constructing a new dyke in situ, whether or not the new dyke is stronger or wider
than the old one, or a combination of such works (paragraph 42).
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(ii) Scoping: Scoping is defined as “the process of determining the content and extent
of the matters which should be covered in the environmental information to be
submitted to a competent authority for projects which are subject to EIA”31. The
purpose of scoping is to focus EA on the main or significant impacts. The scoping
process, therefore, requires a detailed characterisation of a project and its receiving
environment in order to identify all potential significant impacts. Due to the complexity
of impact identification and scoping it will often be necessary for the developer to consult
with the competent authority and other agencies with environmental responsibilities on
the scope of the assessment, pursuant to Article 5 paragraph 2 of the EIA Directive. The
objective of the scoping requirement was to establish an early contact and a certain co-
operation between the developer and the competent authority on key issues of importance
in relation to the information to be provided by the developer and examined by the
authority so as to avoid delays later on in the procedure and ensure completeness of the
information to be provided. The EIA Directive provides for two cases. It either requires
competent authorities to provide, if the developer so requests, an opinion on a list of the
information to be submitted or allows Member States to make this a mandatory
procedure, requiring competent authorities to provide a scoping opinion irrespective of
whether the developer so requests. Article 6 paragraph 1 also requires that relevant public
agencies with environmental responsibilities are consulted and that they may provide any
information they have in their possession that may aid the EIA process.
(iii) Writing the EIA Report: The developer must prepare a Report for consideration by
the planning authority pursuant to article 5 paragraph 3, the essential elements of which
are specified in Annex IV. Given the free market objectives of EU and the privatization
tendency of the EU economies, the developer will most often be a private enterprise
seeking authorization for a private project (although en EIA must also be prepared by any
public authority initiating a public project). The EIA Report shall include seven key
elements:
1. Description of the project: It shall include at minimum a description of the actual

project and the location of the activity site description. The project description shall cover
all its physical characteristics in its key components, i.e., construction, operations,
decommissioning. For each component a list all of the sources of environmental
disturbance must be reported, i.e., inputs/production processes (eg, nature and quantity of
materials used) and outputs/expected residues and emissions (eg, air pollution, noise,
hydrology, light, heat, radiation)
2. Alternatives that have been considered: The developer shall mention all alternatives
studied and give a justification of the choice made, in the light of the likely
environmental effects. This section is particularly useful for the Courts in order to apply
the principle of proportionality, i.e., the choice should meet the project’s goals with the
lower adverse environmental impact, within a particular economic context.
3. Description of the environment: The developer must list all aspects of the
environment that may be significantly affected by the development; in particular,
31
Council of European Community (2001) Environmental Impact Assessment Guidance on Scoping,
http://ec.europa.eu/environment/eia/eia-guidelines/scoping_checklist.pdf
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populations, fauna, flora, air, soil, water, climatic factors, humans, landscape, cultural
heritage and the inter-relationship of the above factors. This section is best carried out
with the help of local experts and public consultation.
4. Description of the likely significant effects on the environment: In praxis, the most
frequent method used to assess the effects is the Leopold matrix, a tool used in the
systematic examination of potential interactions arising from th existence of the project,
the use of natural resources and the emission of pollutants.
5. Mitigation: Once the description of the effects is completed, it will be obvious where
the impacts will be greatest. The developer must explicitly state measures of preventing,
reducing and, to the extent possible, offsetting adverse environmental impacts.
6. 1on-technical summary: The EIA Report will be in the public domain and be used in
the decision making process, so it is crucial that it should be understood by the informed
lay-person and does not include jargon or complicated diagrams.
7. Lack of know-how/technical difficulties: This developer must address at this section

the areas of weakness in knowledge, so as to emphasize the need of future research even
after consent by the public authority is given. In theory, this section could also be used by
the Courts as a tool for triggering the application of the precautionary principle, where
even in the absence of any concrete scientific evidence, it would be deemed inappropriate
to pose significant risks to the environment.
(iv) Review of the Report: This step is defined as “the process of establishing whether
the environmental information submitted by a developer to a competent authority,
as part of an EIA procedure, is adequate to inform the decision on development
consent”32. As discussed above, there are some mandatory minimum information
requirements that establish an implicit need for review as a project may not be authorised
if the information set out at Article 5 paragraph 3 and Annex IV is not complete. The
competent public authority for granting the “development consent” (i.e., the decision
which entitles the developer to proceed with the project) is ultimately responsible for
considering the adequacy of the information provided, including legal compliance and,
accordingly, failure to provide adequate information amounts to ground for refusal of
development consent. This assumption is based on Article 8, which explicitly states that
the information included in an EIA Report must be taken into account in the development
procedure, although it does not mandate exactly the manner. Studies in EU countries
have shown that up to 50% of EIA Reports do not fully comply with the requirements of
the Directive33.
After the second amendment of the EIA Directive, following EU signature of the 1998
Aarhus Convention, a new requirement for public participation and consultation was
introduced. Accordingly, pursuant to article 6 paragraph 2, the Member states should
32
Council of European Community (2001) Environmental Impact Assessment Guidance on Review,
http://www.europa.eu.int/comm/environment/eia/eia-guidelines/g-review-fulltext.pdf
33
Council of European Community (2003) Report on the Application and Effectiveness of the EIA
Directive, Brussels, available online at http://ec.europa.eu/environment/eia/pdf/report_en.pdf.
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provide for any interested natural or legal person or their associations all relevant
information contained in the EIA Report and should be given the opportunity, within
reasonable time frameworks, to make their comments and express in writing their opinion
on the (i) adequacy of the information and (ii) the expediency of the development
consent. The competent authority shall have to take account in its review the public
comments and clearly state them in its final decision.
Moreover, article 7 sets the framework for interstate consultations between only Member
States where «a project is likely to have significant effects on the environment in another
Member State». Such consultations for transboundary environmental effects may be
initiated by any of the concerned States and include a duty of prior notification and, in
case the affected Member State requests so, an obligation of permitting the participation
of the authorities and the public of the affected State in the EIA procedure.
(v) Decision making: The rational of EIA is to provide information about the
environmental consequences of an action to decision-makers in advance of their decision
so that these environmental concerns are integrated in the decision process. Article 8
requires that the environmental information supplied by the developer, as well as the
outcome of the public consultation procedure, are taken into consideration in the
development consent procedure. It is apparent that the EIA Directive focuses on
environmental matters. Nevertheless, the consideration of the environmental dimension is
not automatically treated as more important than other considerations that a competent
authority has to take account of when making a decision. Therefore, the environmental
considerations raised by the EIA process are balanced against other societal and
economic considerations in decision making. The competent authorities shall have to
apply the general principal of proportionality, which is widely applied by ECJ and
national Courts and has been, generally, interpreted as permitting the development
consent whenever the project option is deemed to be appropriate in the light of specific
socioeconomic conditions.
Also after the second amendment of the EIA Directive, a new requirement for Judicial
Review of the development consent was introduced. The Member states must make
public their final decision and its justification and make reference to the mitigation
measures adopted. The public affected or having a sufficient interest in the decision shall
have the opportunity, pursuant article 11, to challenge the procedural and/or the
substantial legality of the decision and the application of the public participation
provisions. The Directive approach implies that a wide scope should be given to the term
“interest”, since non-governmental organizations promoting environmental interests are
deemed to have a sufficient interest to file a petition for judicial review. It should be
stressed that in some EU countries the Courts have interpreted this approach in a manner
practically making the filing of a judicial review in environmental issues an actio
popularis (i.e., acknowledging standings to any natural or juridical person claiming
environmental interest).
III.B. Strategic Environmental Assessment Directive
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 was
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issued in July 2001 and creates a basic framework for the assessment of the effects of
certain plans and programmes on the environment with the following objectives: (i) the
protection of the environment; (ii) the integration of environmental considerations into
the preparation and adoption of plans and programmes so as to promote sustainable
development; and (iii) the promotion of more transparent decision-making. The SEA
Directive lays down «a minimum environmental assessment framework, which would set
out the broad principles of the environmental assessment system and leave the details to
the Member States, having regard to the principle of subsidiarity» (8th recital of the
preamble)34. It should be stressed that the Directive leaves a wide discretional margin to
the Member states with regard to the adoption of specific rules for the implementation of
the Directive provisions35.
In general, the Directive requirements correspond to the usual sequential steps of the SEA
process36 which are: screening, scoping, writing the environmental report, reviewing the
report, decision-making on whether to accept, amend or reject the strategic proposal, and
monitoring.
(i) Screening and Scoping: At this step, the need for submitting a proposed
plan/programme to a SEA is identified. This is done both on a case-by-case basis based
on the likelihood of the plans/programmes to have significant environmental effects, as
well as by establishing a list of proposals that automatically are subjected to a SEA. The
SEA Directive does not explicitly provide the plans/programmes for which a SEA is
required, but it does establish two ways for defining them, through an objective and
a subjective screening process.
Under article 3 par. 2, a SEA is mandatory (objective screening) for: (i)

plans/programmes that set a framework for projects that are subject to an EIA as
determined in the EIA Directive37, in the following sectors: agriculture, forestry,
fisheries, energy, industry, transport, waste management, water management,
telecommunications, tourism, town and country planning and land use and (ii)
plans/programmes which have been determined to require EA, in view of their likely
effects on sites, pursuant to Article 6 or 7 of Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and flora38.
34
This two-tiered legislation is characteristic of EU Directives: namely, while the results and the practical
effectiveness of the Directive provisions are mandatory, each Member State has a choice of methods and
forms while respecting its set limits. National legislation is needed for the implementation of a Directive,
but the ECJ has a ruled that a failure to do so within a concrete time limit may trigger the direct effect of
the Directive provisions, as long as these provisions are sufficiently clear and let no ambiguity for the
national public authorities.
35
Risse N., Crowley M., Vincke Ph., Waaub J-P., Implementing the European SEA Directive: the Member
states’ margin of discretion, Environmental Impact Assessment Review, 23 (2003), p. 457-466.
36
Sadler B, Verheem R. Strategic environmental assessment: status, challenges and future directions,
Report no. 53, The Netherlands: Ministry of Housing, Spatial Planning and the Environment, 1996.
37
In Annexes 1 and 2 that are also attached on the end of this paper.
38
Annexes 1 and 2 of the said Directive determine specifically all types of all natural habitat types and
plant/animal species of European Community interest, for the protection of which a SEA is required for all
plans/projects might have an adverse effect on them.
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Member States can also apply, at their discretion, the screening method and decide - by
using criteria defined in the SEA Directive39 that relate to the characteristics of either the
plan/programme or of their environmental consequences - whether or not to apply SEA
also to other plans and programmes, such as those determining the use of small areas at
local level (subjective screening). This decision can be made on a case-by case
examination or by specifying in a list the types of plans or programmes that are subject to
a SEA or by combining the two approaches (article 3 par. 5).
(ii) Writing the SEA Report: The Directive does not explicitly mention who bears the
obligation of preparing the SEA Report. Nevertheless, SEA documents worldwide are
being prepared by public authorities, given the close connection of the governmental
policy to planning and regulating at national level sectors of economy. However, there is
a margin for private initiatives, presumably for privatized sectors, such as the utilities, in
case the relative market proceeds at future stage of complete state deregulation. The SEA
Report shall describe and evaluate the significant environmental effects of the
plan/programme and the reasonable alternatives, given its objective and geographical
scope, pursuant to article 5 paragraph 1, the essential elements of which are specified in
Annex I. The SEA Report shall include ten key elements:
1. Description of the objectives of the plan/programme
2. Description of the current state of environment and its possible evolution in the
absence of plan/programme
3. Description of the aspects of environment likely to be significantly affected
4. Reference to existing environmental problems, especially for areas of particular

environmental importance, as designated in the EU legislation
5. Reference to the environmental protection objectives
6. Analysis of possible significant effects on the environment: It includes any kind of

effects (secondary, cumulative, synergistic, short, medium and long-term permanent and
temporary, positive or negative) on issues such as biodiversity, population, human health,
39
In Annex II that sets two types of criteria: (i) characteristics of plans/programmes regarding (a) the
degree to which the plan/programme sets a framework for projects and other activities, either with regard to
the location, nature, size and operating conditions or by allocating resources, (b) the degree to which the
plan/programme influences other plans/programmes including those in a hierarchy, (c) the relevance of the
plan/programme for the integration of environmental considerations in particular with a view to promoting
sustainable development, (d) environmental problems relevant to the plan/programme and (e) the relevance
of the plan/programme for the implementation of Community legislation on the environment (e.g.
plans/programmes linked to waste-management or water protection) and (ii) characteristics of the effects
and the area likely to be affected, such as (a) the probability, duration, frequency and reversibility of the
effects, (b) the cumulative nature of the effects, (c) the transboundary nature of the effects, (d) the risks to
human health or the environment (e.g. due to accidents), (e) the magnitude and spatial extent of the effects
(geographical area and size of the population likely to be affected), (f) the value and vulnerability of the
area likely to be affected due to special natural characteristics or cultural heritage, exceeded environmental
quality standards or limit values and intensive land-use and (g) the effects on areas or landscapes which
have a recognised national, Community or international protection status.
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fauna, flora, air, soil, water, climatic factors, material assets, landscape, cultural heritage
(including architectural and archaeological heritage) and the inter-relationship of the
above factors
7. Mitigation measures: The SEA Report must explicitly state measures of preventing,
reducing and, to the extent possible, offsetting adverse environmental impacts
8. Alternatives that have been considered: The SEA shall make reference to the
grounds for selecting the alternatives that have been studied and describe the difficulties
encountered in compiling the necessary data, due to lack of know-how or any other
technical deficiencies.
9. Description of monitoring measures for the prompt implementation of SEA
10. 1on-technical summary of the above information: The SEA Report will be in the
public domain and must be written in a language accessible to the informed lay-person
The environmental report might in many cases be a part of a wider assessment of the
plan/programme, i.e., a part of a document on sustainability assessment covering also
social and economic effects, or a sustainability assessment could be integrated in the plan
or programme. Either model would be an acceptable way of complying with the Directive
provided it fully met the requirements of the Directive40.
(iii) Review of the SEA Report: At this stage the competent public authority for the
development of the plan/programme must integrate the outcome of the SEA Report in its
decision-making procedure prior to the adoption or the submission of the final
plan/programme to the legislative procedure. Pursuant to the provisions of article 4 of the
Directive, integration purports to secure that SEA is fully taken into account in decisions
related to the strategic proposal and should be evaluated at several stages of the planning
process, namely, each time a decision is made on the options of the plan or programme to
be abandoned, modified or developed further. These intermediate decisions would then
be integrated into the final proposal subjected to the official decision-making process.
SEA integration is also mentioned in Article 11 of the Directive that states that Member
States may provide for coordinated or joint procedures when the obligation to carry out
assessment arises simultaneously from the SEA Directive and other Community
legislation. These measures, raised by Articles 4 and 11 of the Directive, highlight two
principal components of SEA integration into the planning process: (i) tiered application
of SEA to the different hierarchical levels of planning and (ii) coordination of SEA with
the other parameters taken into account in the planning process.
Article 6 of the SEA Directive mandates the public involvement in the decision-making
process. Public participation implies a mutual communication between the competent
public authority and the public at every stage of the SEA process and constitutes an
essential component of the assessment process, since it increases the legitimacy of the
40
Commission's Guidance on the implementation of Directive 2001/42/EC on the assessment of the effects
of certain plans and programmes on the environment, available online at:
http://ec.europa.eu/environment/eia/pdf/030923_sea_guidance.pdf.
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decision-making process by enhancing transparency and increasing public confidence in

the final decision. The Member States have the discretional margin to identify the public
that is affected or likely to be affected by, or having an interest in the decision-making
(e.g., non-governmental organisations and other organisations concerned) that should
participate through information and/or consultation and be given the chance to comment
on the subject. The Directive does not specify the methods by which information shall be
made available, but these must be adequate to enable the authorities and public to express
their opinion. Accordingly, appropriate publicity arrangements will be needed, and the
information will need to be readily accessible to secure the practical efficiency of the
provisions of Article 6.
The rules governing transboundary consultations between Member States are set out
in article 7, where a duty of notification (that consists in exchange of a copy of the draft
plan/programme prior to its adoption and of the respective SEA) is established «where a
Member State considers that the implementation of a plan or programme being prepared
in relation to its territory is likely to have significant effects on the environment in
another Member State, or where a Member State likely to be significantly affected so
requests». The affected Member State may request to enter in consultations with the
Member State implementing the plan/programme regarding their transboundary effects
and arrangements shall be made to ensure that the concerned public of the affected
Member State shall effectively participate in the decision-making procedure. These
provisions for transboundary consultations apply only in plans/programmes initiated
in national level by a Member State and do not cover Community-level
programmes, such as the Common Agricultural Policy. This does not imply that
environmental concerns are not taken into account in such Community-level
programmes. In contrary, the European Community Treaty – a text that until the adoption
of the Lisbon Convention is considered to be a fundamental text of constitutional
character for the European legal order - provides in article 174 that «Community policy
on the environment is to contribute to, inter alia, the preservation, protection and
improvement of the quality of the environment, the protection of human health and the
prudent and rational utilisation of natural resources and that it is to be based on the
precautionary principle». Moreover, article 6 of the Treaty provides that «environmental
protection requirements are to be integrated into the definition of Community policies
and activities, in particular with a view to promoting sustainable development».
(iv) Decision-making on whether to accept, amend or reject the strategic proposal: At this
stage the competent public authority (most often a governmental department) shall decide
on the approval, amendment or refusal of a proposal of a plan/programme, based on
several criteria or components (e.g., relevance of the proposal in relation to the
objectives, efficiency of the proposal and fulfilment of the objectives at the least costs).
SEA remarks are solely one of the elements (along with economic and social impact
studies) influencing this decision.
Article 8 identifies the elements that have to be taken into account into the decision-
making: the SEA report, the opinions expressed by concerned authorities and the public
during the prior stage and, if relevant, results of transboundary consultations. Under
article 9, the authorities, the public and the other Member states consulted during the
SEA process shall be notified of the adoption of the plan/programme and relevant
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documentation (notably the plan/programme as adopted, a summary statement on the

integration of environmental considerations in the decision-making process and
monitoring measures) are made available in the public domain. The Directive does not
define the importance of SEA in the decision to approve, amend or refuse the strategic
proposal and does not provide for a judicial review of the authority’s decision.
(v) Monitoring: This is the last step of the SEA process and comes in effect once the
strategic proposal of a plan/programme submitted to a SEA is implemented. It purports to
identify unforeseen effects which require remediation, evaluate the effectiveness and
application of the mitigation measures and significant give feedback to assist in the
realisation of future SEA. Article 10 states that the significant environmental effects of
the implementation of plans/programmes have to be monitored at an early stage for the
Member States to be able to undertake remedial actions. In that context, Member States’
existing monitoring arrangements can be used to avoid duplication.
The Directive does not define the meaning of “monitor”. Monitoring can, however, be
generally defined as an activity of following the development of the parameters of
concern in magnitude, time and space. Article 10 does not entail any technical
requirements about the methods to be used for monitoring. The methods applied should
be the ones that best suit each case to seeing whether the assumptions made in the SEA
Report correspond with the environmental impacts following the practical
implementation of the plan/programme, and to identifying at an early stage adverse
effects that were unforeseen during the SEA procedures. It is clear that monitoring is
embedded in the context of the EA and does not require scientific research activities.
At this point, it should be stressed that the ECJ has not yet interpreted any provisions of
the SEA Directive, since no national Court has filed any question to this respect. A
reason for the absence of any relevant case-law may lay in the fact that many EU
countries have failed to issue national legislation implementing the SEA Directive in the
domestic legal order. Actually, the time limit for the implementation being July 21, 2004,
the only case-law on this regard is a number of ECJ decisions acknowledging the
Member states’ violation of the implementation obligation contained in the SEA
Directive (namely ECJ decisions C-40/07 for Italy, C-376/06 for Portugal, C-159/06 for
Finland, C-54/06 for Belgium and C-77/06 for Luxemburg). At the same time similar
European Commission’s actions have been filed before the Court against Greece (C-
68/06), Spain (C-52/06), Netherlands (C-108/06) and decision is pending.
III.C. Comparison and analysis of the Differences
From a close reading of the preamble of the SEA Directive, it can be inferred that EU
acknowledged 16 years after the issuance of the EIA Directive that the universally
recognized fundamental environmental principle of sustainable development cannot be
secured without integrating environmental concerns at a higher level than that of the
development consent for a specific project. It explicitly refers to other international
legislation, such as the Convention on Biological Diversity and the United
Nations/Economic Commission for Europe SEA Protocol that also highlight the necessity
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of treating environmental issues as important parameters when developing cross-sectoral

plans and programmes41.
It is clear that the scope of application of the two Directives is sufficiently distinct. In
particular, EIA is applied to specific and relatively short-term (life-cycle) projects and
their specifications, that are well defined in the Directive, while SEA covers plans and
programmes with a broad and long-term strategic perspective that are not exclusively
defined (emphasis is given rather on the interpretation of other conditions related to
covered plans/programs, such as the competent public authority, the legislative or
administrative provisions regulating their development). This uncertainty may create
ambiguity, but from my point of view is a strategical option of the EU organs for the
broader possible application of the SEA Directive in governmental policies.
As discussed above, there is no relevant ECJ case-law that could help us evaluate the
operation of the SEA Directive alongside with the EIA Directive and the possible
overlaps based on the object of EA (projects vs. plans/programmes). There are some
relevant ECJ decisions though that worth being mentioned, since they highlight a general
idea of the Court’s approach. Accordingly, as mentioned above, ECJ has ruled that
Member States’ discretional margin on the main objective of EIA Directive (and by
analogy to SEA Directive) should be limited so that the Directive enjoys “a wide scope
and a broad purpose”42. Moreover, although the SEA Directive explicitly refers to the
avoidance of duplication of EA procedure (Article 4 paragraph 3), this should not limit
the proper evaluation of environmental considerations. In a number of cases43, ECJ has
ruled that in a tiered system with a principal consent decision for a project and
subsequent implementing decisions, an EIA must be carried out for each single decision,
if the project’s part covered by the implementing decision might have significant adverse
environmental impacts. Nevertheless, as the Court explained in Delena Wells case, where
national law provides for a consent procedure comprising more than one stage, one
involving a principal decision and the other involving an implementing decision which
cannot extend beyond the parameters set by the principal decision, the effects which a
project may have on the environment must be identified and assessed at the time of the
procedure relating to the principal decision. It is only if those effects are not identifiable
until the time of the procedure relating to the implementing decision that the assessment
should be carried out in the course of that procedure44.
One could argue that the SEA Directive explicitly defines the link between itself and the
EIA Directive through the establishment of the criterion of article 3 par. 2 that provides
for the objective screening procedure and requires a SEA for all plans/programmes that
«set the framework for future development consent of projects» listed in the EIA
Directive. It is a clear hierarchical link that raises an issue of potential duplication of
the EA procedure in general; the permissibility of such duplication is also supported
41
Imperial College, London, Final report to the European Commission on “The Relationship between the
EIA and SEA Directives project”, August 2005, available online at:
http://ec.europa.eu/environment/eia/pdf/final_report_0508.pdf.
42
C-133/94, Commission v Belgium and C-72/95, Kraaijeveld case
43
C-227/01, Commission Vs. Spain, C-290/03, Regina Vs. London Borough of Bromley and C-580/03,
Commission Vs. Spain.
44
C-201/02, Delena Wells Vs. Secretary of State for Transport, paragraph 52.
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by the text of the SEA Directive (article 11 par. 1) that states that a SEA «shall be
without prejudice to any requirements» under EIA Directive.
Another major practical difference, as discussed above, can be traced in the provider of
the assessment. In praxis, all SEAs have been developed until now by public authorities
that have been assigned with such duty by the decision-making body (i.e., in UK
environmental agencies of the Department to which the decision-making body belongs)
which are not preoccupied in favour of the execution of plan/programme, if the latter will
presumably have significant adverse environmental impacts. On the other hand, since
most projects are developed and funded by the private sector, the developer who is
obliged to file the EIA report is the same private entity performing the project, which will
indisputably try to negate or conceal possible environmental effects, in order to promote
the most profitable alternative. So an EIA report will focus more on obtaining project
permission rather than deal with overall environmental considerations.
At any rate, it is conceptually reasonable that an EIA will only consider a relatively small
number of alternatives closely related to the project, while the more holistic inherent
policy approach of a SEA will deal with broader alternative options for the
implementation of a plan/programme. This difference in the magnitude of the objects also
leads to a limited review of cumulative impacts in EIAs, often limited to phases of a
specific project that cannot cover regional-scale developments or multiple projects. On
the other hand, a SEA will emphasize on meeting balanced environmental, social and
economic objectives in plans and programmes and will identify macro-level development
outcomes.
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IV. US approach on Environmental Assessment at a Strategic level

IV.A. Programmatic Environmental Impact Statement
As we already discussed, NEPA requires an EIS examining the likely environmental

implications of, and possible alternatives to, legislation and major federal actions that
could significantly affect the quality of the human environment [Sec 102(2) (C)]. Under
CEQ regulation 1508.12, major federal actions include, inter alia, plans, programmes,
policies and legislative procedures and the corresponding EIS is often referred to as
“Programmatic” EIS by scholars and the Courts. NEPA does not make a clear distinction
between PEIS and EIS which are covered under the same legislation.
A PEIS may be prepared, and is sometimes required, for extensive federal actions such as
the adoption of new agency programs or Regulations. PEISs should be prepared so that
they are relevant to policy decisions and are timed to coincide with meaningful points in
agency planning and decision-making (CEQ Reg. 1502.4[b]). Moreover, PEIS are
required for the broad actions categorized in the following ways: (i) geographically,
covering actions occurring in the same general location, (ii) generically, including actions
which have similarities, in terms of timing, impacts, alternatives, methods of
implementation, media, or subject matter or (iii) by stage of technological development
including federal or federally assisted research, development or demonstration programs
for new technologies which, if applied, could significantly affect the quality of the human
environment (CEQ Reg. 1502.4[c]).
The CEQ Regulations provide the ability to “tier” environmental assessments and
statements. Tiering refers to the coverage of a higher level of environmental
documentation in a broad PEIS, followed by more detailed and applied analyses and
environmental documentation for a site-specific action or a subset of the broad program
(such as regional or basinwide program statements or ultimately site-specific statements).
To avoid unnecessary duplication the following EIS need not repeat the issues treated in
the PEIS, but should rather emphasize on the actual issues ripe for decision at each
subsequent level of environmental review (CEQ Reg. 1502.20). Tiering is often used (i)
where an agency has developed a plan or program issuing a PEIS (top tier) and uses
subsequent EISs to analyze impacts of specific implementing actions under that plan
(bottom tier) and (ii) for large projects where all the details are not available in the earlier
stages of the project (CEQ Reg. 1508.28)45.
The CEQ suggests that an agency consider a streaming-line procedure by preparing a

high-level EIS for programs, policies, and plans so that tiering proceeds from statements
of broad scope to those of narrower scope (CEQ Reg. 1500.4[i]). The PEIS will create
high-level direction and provide respective coverage for subsequent lower-level EISs that
will evaluate the details and specific actions falling within the scope of the PEIS. The
latter is deemed to be the appropriate tool for identifying and evaluating the
environmental consequences of all actions (e.g., connected, cumulative, and similar)
associated with a broad program (CEQ Reg. 1508.25[a])46. This particular regulation
45
Jain R., Urban L.V., Stacey G., Balbach H., Environmental Assessment, Second Edition, McGraw-Hill,
Professional Engineering, p. 115.
46
Eccleston Ch., NEPA and Environmental Planning, Tools, Techniques and Approaches for Practitioners
CRC Press, Taylor&Francis Group, 2008, p. 223.
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defines the scope of a PEIS, which consists of the range of the said actions, alternatives,
and impacts to be considered generally in an EIS. It is crucial to point out that it provides
for a “no action” alternative, while the impacts to be considered might be direct, indirect
or cumulative.
In general, a PEIS is obliged to have the same general content as an EIS, as described in
CEQ Reg. 1502.10. Accordingly, it shall contain the following elements in its standard
format:
1. A cover sheet that shall identify the responsible agencies and contain general
designations of the proposed PPP, a one paragraph abstract of the PEIS and the date by
which comments must be received
2. A summary stressing the major conclusions, areas of controversy and the issues to be
resolved
3. Table of contents
4. A statement of purpose and need for the proposed action
5. Description of the alternatives considered including proposed action: This part is
considered the heart of the PEIS, where the environmental impacts of the proposal and
the alternatives shall be presented in comparative form to help the decision-maker make
his final choice. In particular, the agency should (a) evaluate all reasonable alternatives,
briefly discussing the reasons for having some eliminated, (b) analyze each alternative
considered in detail, (c) include reasonable alternatives not within the jurisdiction of the
lead agency, (d) include the alternative of no action, (e) cite the agency’s preferred
alternative or alternatives and (f) include appropriate mitigation measures not already
included in the proposed action or alternatives
6. Description of the affected environment: Data and analyses in PEIS shall be
commensurate with the magnitude of the impact, with less important material
summarized, consolidated, or simply referenced
7. Reference to environmental consequences: This part shall include the environmental
impacts of the alternatives including the proposed action, any adverse environmental
effects which cannot be avoided, the relationship between short-term uses of the
environment and the maintenance and enhancement of long-term productivity, and any
irreversible or irretrievable commitments of resources which would be involved in the
proposal.
8. A list of preparers of PEIS mentioning names and qualifications
9. A List of Agencies, Organizations, and persons to whom copies of PEIS are
circulated
10. Appendices if the agent deems necessary that shall consist of analytical,
substantive material that is fundamental for PEIS
The benefits of a PEIS approach in the NEPA system are apparent: When analysis takes
place at a more programmatic/strategic perspective, an increased number of reasonable
and cost-effective alternatives can be studied. Therefore, when planning is shifted from
lower to higher level assessments, many problems that are difficult to address at the final
project phase become much more manageable, since alternatives that appear impractical
when first evaluated at a low-level planning perspective can be mitigated at more
programmatic levels.
NEPA framework provides for the judicial review of every kind of EIS (including PEIS).
Initially, the court cases resulting from NEPA dealt primarily with procedural
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requirements of the act, while litigation in 1972 and 1973 dealt with the content of
statements and, more recently, with the substantive requirements of NEPA and the
agency decisions made after statements are completed. Most of PEIS related case-law
deals with the tiering system, i.e., in cases where a PEIS exist, but an agency is
challenged for omitting the preparation of subsequent site-specific analyses.
Moreover, CEQ Reg. 1506.6 provides for public participation in the PEIS process which
will be handled by agencies. In particular, the agencies which prepare a PEIS shall
provide public notice of PEIS-related hearings and inform those persons and agencies
who may be interested or affected. To this end, agencies might use, inter alia,
publications in local newspapers, notices through other local media, notices to potentially
interested community organizations including small business associations, publications in
newsletters that may be expected to reach potentially interested persons or even direct
mailing to owners and occupants of nearby or affected property. They might also hold or
sponsor public hearings or public meetings whenever there is substantial environmental
controversy concerning the proposed action or substantial interest in holding the hearing.
They should also make the PEISs, the comments received, and any underlying documents
available to the public without charge to the extent practicable. CEQ Reg. 1503 specifies
the process of commenting: The agency after preparing a draft PEIS and before preparing
the final one shall request comments from the public, affirmatively soliciting comments
from those persons or organizations who may be interested or affected. The agency may
response to the comments by modifying alternatives including the proposed action,
developing alternatives not previously given serious consideration by the agency, making
factual corrections or explaining why the comments do not warrant further agency
response. At any rate, all substantive comments received on the draft statement should be
attached to the final statement whether or not the comment is thought to merit individual
discussion by the agency in the text of the statement (CEQ Reg. 1503[c]).
Finally, the CEQ Reg. 1505 provides for the establishment of a monitoring system. In
particular «a monitoring and enforcement program shall be adopted and summarized
where applicable for any mitigation» (CEQ Reg. 1505.2[c]), while «agencies may
provide for monitoring to assure that their decisions are carried out and should do so in
important cases» (CEQ Reg. 1505.3).
IV.B. Comparison with the EU approach
Based on the above, PEIS is the US tool analogous to the EU concept of SEA. It should
be stressed that both PEIS and SEA aim to integrate environmental concerns at a higher
and earlier level of the decision-making process. The relevant legal framework sets in
both legal orders a system of tiering in environmental assessment, namely, mandates
public authorities in EU and federal agencies in US to carry out strategic/programmatic
environmental assessments for plans/programmes which establish the context in which
project-oriented assessments will be carried out. Moreover, both systems provide for
public consultation before the legislative adoption of the plan/programme and a thorough
analysis of the possible alternatives for the proposed policies. The content of the reports
to be prepared seem to be quite similar in their essence, since both PEIS and SEA should
specify the environment affected, cite the possible indirect or cumulative environmental
impacts of the proposed PPPs and discuss any alternatives that have been considered. In
addition, both the PEIS and SEA procedures provide for active public involvement prior
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to the final decision of the agency responsible for the implementation of a specific plan or
programme. One more common approach is the “non-mutually exclusive” character of
the tiering system that provides for the harmonic coexistence of an EA at a strategic level
of the decision-making procedure (a SEA in EU and a PEIS in the US) and a project-
specific evaluation of environmental impacts.
Some basic differences between the US and the EU systems can be traced in the
following elements:
(i) NEPA framework explicitly allows judicial review of PEIS before the US
Courts, on both procedural and substantive grounds, in contrast to SEA
Directive that does not mandate a similar direct petition before the Courts for
the invalidation of a SEA that was not carried out pursuant to the proceedings
provide in the Directive47;
(ii) PEIS and EIS are both regulated through one set of legislation setting
common principles and joint tiering procedures for both forms of EA
(overlaps of assessment can be avoided since the approach to be adopted is
usually determined during scoping phase) while, in the contrary, EU has
adopted different Directives for EIA and SEA (setting different procedures
and requiring distinct contents of environmental Reports) creating uncertainty
and possible overlapping problems with regard to which procedure should be
applied, where the object of assessment cannot clearly be defined as a
programme or a project; and
(iii) NEPA is explicitly confined only in federal actions and, thus, the PEIS will be
only carried out by federal governmental agencies (private initiatives are
excluded), while SEA Directive lets this point unclear48.
(iv) The NEPA framework explicitly provides for a “No Action” alternative that
could lead to a decision of the competent agency not to implement the
proposed PPP. On the other hand, such an option is not explicitly mentioned
in the SEA Directive, although, in my opinion, it speaks for itself that in the
light of irreversible and highly destructive environmental impacts, EU
competent authorities reserve the right not to proceed with the proposed
plan/programme.
(v) Public participation is more rigorously ascertained and in detail discussed in
the CEQ Regulations for a PEIS in comparison to the very vague obligation
for public consultation set out in article 6 par. 4 of the SEA Directive. It falls
upon the Member States of EU to realize this obligation within their domestic
legal system by enacting appropriate legislation that will secure the practical
effectiveness of public participation.
(vi) Monitoring is required for any SEA, while it falls upon the US agency to
establish a monitoring system for the proper implementation of the PEIS
47
Although, according to my knowledge of Greek Administrative Law, any implementing administrative
act on a plan/programme that was adopted without properly conducting the SEA procedure could be
challenged before the Greek Courts on the ground of “lack of an essential form of the decision-making
procedure”. To this end, an incomplete or illegally conducted SEA could indirectly be challenged before
the Greek Administrative Courts.
48
Nevertheless, as already discussed, at this point only public authorities n the EU Member states
undertake SEA procedures, given the inherent close correlation of planning and programming in general
sectors of economy to governmental power.
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mitigation measures. Nevertheless, CEQ Regulations pose an obligation to US

agencies to set such a monitoring system for important cases.
In a more theoretical level, a US scholar believe that a SEA is frequently considered to be

one level higher than a US PEIS, since it is closely relate to the stage of policy making. In
his opinion, NEPA contains all the necessary elements for assessing strategic issues of
both national and international concern in a SEA that could then be followed by a number
of PEIS for developing specific national programmes «that would implement the high-
level policy and strategy established in the SEA» in a tiering manner49.
Other US scholars, finally, take a step further and propose the adoption in the US of a
legislation similar to the provisions of the SEA Directive, that is believed to provide the
EU with a superior «analytical tool to contribute to more learned policy-level decisions
while simultaneously increasing the awareness of the environmental consequences
associated with sequential actions». He states that NEPA’s range has been under-utilized
in US and mentions that only one federal agency (the Bonneville Power Administration)
has tried to apply NEPA’s provisions for the preparation of a strategic evaluation of
environmental consequences50. The said agency prepared a single, broad environmental
assessment to develop a consistent overall policy establishing the framework for issuance
of future specific actions in the same direction with the selected policy direction and the
US Courts lauded the agency’s uniquely strategic approach was superior.51 Accordingly,
they believe the said agency has set a paradigm of a more strategic approach of
environmental issues in the decision- making process that remains to be seen if it will be
followed by other federal agencies in the US.
49
Eccleston Ch., NEPA and Environmental Planning, Tools, Techniques and Approaches for Pacticioners
CRC Press, Taylor&Francis Group, 2008, p. 226-227.
50
The revised Bonneville Power Administration (hereinafter, “BPA”) Strategic Direction for 2008-2014 is
available online at: http://www.bpa.gov/corporate/about_BPA/StratDocs/Strategy_2008-14.pdf. The said
SEA alike document sets its primary goal as follows: «… To assure the Pacific 0orthwest (i) an adequate,
efficient, economical and reliable power supply; (ii) a transmission system that is adequate to the task of
integrating and transmitting power from federal and non-federal generating units, providing service to
BPA’s customers, providing interregional interconnections and maintaining electrical reliability and
stability; and (iii) mitigation of the Federal Columbia River Power System’s1 impacts on fish and wildlife».
It then goes on and defines its scope of application and the specific methods used for an early identification
and consideration of environmental consideration in BPA’s decision-making process.
51
Underwood B.P., Alton C.C., Could the SEA Directive succeed within the United States?, Environmental
Impact Assessment Review, 23 (2003), p. 259-261.
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V. Conclusion
Nowadays, environmental degradation is a hotly debated issue in various international

fora and public concern has risen in the last decades. As a result, pressure is exercised
upon governments to draw environmental friendly policies at a national level, while at the
same time many international agreements and declarations highlight the need for an
integration of environmental concerns in the decision-making process.
Focusing on the EU approach, this paper aimed to point out this attempt to moving to
more holistic approaches of integrating environmental issues in public authorities’
decisions for the implementation of any activity that may affect the environment. EIA has
served as a tool in the last four decades, but its restricted focus on concrete low-scale
project activities cannot address the necessity for a more strategic analysis of possible
significant environmental impacts of broader state’s policies. To this end, SEA can
contribute more by obliging decision-makers consider environment as a parameter of
their overall development programmes. In EU particularly, SEA also serves as a more
impartial environmental-friendly tool than EIA, since the assessment report will be
prepared by state authorities rather than private companies developing a specific project,
which have an incentive to prepare an EA that will better suit their interests.
In the years to come, the ECJ will play an important role in determining the scope of
application of the SEA Directive (i.e., by defining criteria that would highlight some
kinds of plans/programmes that would be at any rate subject to a SEA prior to their
adoption) and ruling in the adequacy of the national legislation adopted for the
implementation of the Directive. As we discussed above, Member States enjoy a rather
wide discretional margin with regard to the implementation of the public participation
obligation, as well as the subjective screening process. ECJ has already ruled with regard
to the EIA Directive that the concept of projects should be widely interpreted so as to
make an EIA Report mandatory for an increased number of private/public activities.
Moreover, the ECJ is expected to rule on the possible overlaps of the EIA and SEA
Directive and determine the conditions under which a tiering system might be applied. A
possible issue to be resolved is whether some very large projects (i.e., airports covered by
EIA Directive) that may have many sub-projects can be considered as having wider
strategic effects and, thus, considered also as the object of a plan/programme (i.e., in the
sector of transportation covered by the objective screening process of SEA Directive). It
would then be upon the ECJ to resolve the overlap and determine whether the
requirements of both Directives are to be met at the same time or sequentially.
In general, SEA seems also to more adequately serve the principle of sustainable
development, since it has benefits for both decision-making procedures and development
outcomes. It provides the environmental evidence to promote more informed decision-
making and identify new opportunities by encouraging a more systematic study of
development options. SEA’s higher position in the decision-making level ensures a more
prudent management of natural resources and provide the foundations for sustainable
economic growth. It also assists in building more active public engagement for improved
governance and increases transparency in various levels of a state’s policy.
The US PEIS serves pretty much the same objectives and has been used for a long time
prior to the SEA Directive. Being subject to judicial review, PEIS provides the public
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with a more direct review possibility for decisions at a higher level than project-oriented
EIS. Both US and EU systems could learn from each other and incorporate these different
approaches that could enhance integration of environmental concerns at the highest
possible level of the decision-making process, as well as a more active and meaningful
public participation in the EA process. The wide discretion margin that the SEA Directive
provides the Member States for the implementation of the obligation of public
involvement in the SEA process may put at stake the essence of such obligation. In
contrary, CEQ Regulations set a detailed framework that guarantees that the public
concerns will be heard before the competent authorities decide on the implementation of
a plan/programme. On the other hand, SEA Directive explicitly assigns the Member
states with a monitoring obligation for any plans/programmes covered by the SEA
Directive and, thus, ensures that any effects that could not be predicted at the policy
making stage will be handled at a later phase and appropriate remedial action will be
undertaken. The US system does not establish an obligatory monitoring system for all
actions subject to a PEIS, except only for “important” cases, and, therefore, it might be
viewed as incomplete to this regard.
Nevertheless, practice has shown in general that the EA models at the strategic level
around world have not maximized their potential for integrating environmental concerns
in the decision-making process due to a number of technical and institutional reasons
(considerable differences among sectors and decision-making levels within countries;
absence of formal decision-making procedures for many PPPs; the large geographic area
SEA covers; the large number of alternatives, increasing complexity of data collection
and analysis in a SEA; uncertainty about future environmental, technological, economic
and social conditions as well as uncertainty about the real outcome of the PPP; limitations
of information for SEA, where statistical data are missing)52. To this end, attention must
shift to the quality of the decision-making process rather than the impacts of concrete
activities so as to ensure that public participation will be realized at the earlier possible
stage, even where environmental consequences might be unspecific or when
environmental protection might be contradictory to economic or social objectives.
52
Dalkmann H., Herrera R.J., Bongardt D., Analytical strategic environmental assessment (ANSEA)
developing a new approach to SEA, Environmental Impact Assessment Review, 24 (2004), p. 387.
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ANNEX I to Consolidated EIA Directive
PROJECTS SUBJECT TO ARTICLE 4 (1)
1. Crude-oil refineries (excluding undertakings manufacturing only lubricants from crude

oil) and installations for the gasification and liquefaction of 500 tonnes or more of coal or
bituminous shale per day.
2. Thermal power stations and other combustion installations with a heat output of 300
megawatts or more and Nuclear power stations and other nuclear reactors including the
dismantling or decommissioning of such power stations or reactors54 (except research
installations for the production and conversion of fissionable and fertile materials, whose
maximum power does not exceed 1 kilowatt continuous thermal load).
3. (a) Installations for the reprocessing of irradiated nuclear fuel; (b) Installations
designed (i) for the production or enrichment of nuclear fuel, (ii) for the processing of
irradiated nuclear fuel or high-level radioactive waste, (iii) for the final disposal of
irradiated nuclear fuel, (iv) solely for the final disposal of radioactive waste and (v) solely
for the storage (planned for more than 10 years) of irradiated nuclear fuels or radioactive
waste in a different site than the production site.
4. Integrated works for the initial smelting of cast-iron and steel and Installations for the
production of non-ferrous crude metals from ore, concentrates or secondary raw materials
by metallurgical, chemical or electrolytic processes.
5. Installations for the extraction of asbestos and for the processing and transformation of
asbestos and products containing asbestos: for asbestos-cement products, with an annual
production of more than 20 000 tonnes of finished products, for friction material, with an
annual production of more than 50 tonnes of finished products, and for other uses of
asbestos, utilization of more than 200 tonnes per year.
6. Integrated chemical installations, i.e., those installations for the manufacture on an

industrial scale of substances using chemical conversion processes, in which several units
are juxtaposed and are functionally linked to one another and which are used (i) for the
production of basic organic chemicals, (ii) for the production of basic inorganic
chemicals, (iii) for the production of phosphorous-, nitrogen- or potassium-based
fertilizers (simple or compound fertilizers), (iv) for the production of basic plant health
products and of biocides, (v) for the production of basic pharmaceutical products using a
chemical or biological process and (vi) for the production of explosives.
7. (a) Construction of lines for long-distance railway traffic and of airports55 with a basic
runway length of 2 100 m or more; (b) Construction of motorways and express roads56;
54
Nuclear power stations and other nuclear reactors cease to be such an installation when all nuclear fuel
and other radioactively contaminated elements have been removed permanently from the installation site.
55
For the purposes of this Directive, “airport” means airports which comply with the definition in the 1944
Chicago Convention setting up the International Civil Aviation Organization (Annex 14).
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(c) Construction of a new road of four or more lanes, or realignment and/or widening of
an existing road of two lanes or less so as to provide four or more lanes, where such new
road, or realigned and/or widened section of road would be 10 km or more in a
continuous length.
8. (a) Inland waterways and ports for inland-waterway traffic which permit the passage of
vessels of over 1 350 tonnes; (b) Trading ports, piers for loading and unloading
connected to land and outside ports (excluding ferry piers) which can take vessels of over
1 350 tonnes.
9. Waste disposal installations for the incineration, chemical treatment as defined in

Annex IIA to Directive 75/442/EEC under heading D9, or landfill of hazardous waste
(i.e., waste to which Directive 91/689/EEC applies).
10. Waste disposal installations for the incineration or chemical treatment as defined in
Annex IIA to Directive 75/442/EEC under heading D9 of non-hazardous waste with a
capacity exceeding 100 tonnes per day.
11. Groundwater abstraction or artificial groundwater recharge schemes where the annual
volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic
metres.
12. (a) Works for the transfer of water resources between river basins where this transfer
aims at preventing possible shortages of water and where the amount of water transferred
exceeds 100 million cubic metres/year; (b) In all other cases, works for the transfer of
water resources between river basins where the multi-annual average flow of the basin of
abstraction exceeds 2 000 million cubic metres/year and where the amount of water
transferred exceeds 5 % of this flow. In both cases transfers of piped drinking water are
excluded.
13. Waste water treatment plants with a capacity exceeding 150 000 population
equivalent as defined in Article 2 point (6) of Directive 91/271/EEC.
14. Extraction of petroleum and natural gas for commercial purposes where the amount
extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 m³/day in the case
of gas.
15. Dams and other installations designed for the holding back or permanent storage of
water, where a new or additional amount of water held back or stored exceeds 10 million
cubic metres.
16. Pipelines for the transport of gas, oil or chemicals with a diameter of more than 800
mm and a length of more than 40 km.
56
For the purposes of the Directive, 'express road` means a road which complies with the definition in the
European Agreement on Main International Traffic Arteries of 15 November 1975.
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17. Installations for the intensive rearing of poultry or pigs with more than: (a) 85 000
places for broilers, 60 000 places for hens; (b) 3 000 places for production pigs (over 30
kg); or (c) 900 places for sows.
18. Industrial plants for the (a) production of pulp from timber or similar fibrous
materials and (b) production of paper and board with a production capacity exceeding
200 tonnes per day.
19. Quarries and open-cast mining where the surface of the site exceeds 25 hectares, or
peat extraction, where the surface of the site exceeds 150 hectares.
20. Construction of overhead electrical power lines with a voltage of 220 kV or more and
a length of more than 15 km.
21. Installations for storage of petroleum, petrochemical, or chemical products with a

capacity of 200 000 tonnes or more.
22. Any change to or extension of projects listed in this Annex where such a change or
extension in itself meets the thresholds, if any, set out, in this Annex.
ANNEX II to Consolidated EIA Directive
PROJECTS SUBJECT TO ARTICLE 4 (2)
1. Agriculture, silviculture and aquaculture
(a) Projects for the restructuring of rural land holdings; (b) Projects for the use of
uncultivated land or semi-natural areas for intensive agricultural purposes; (c) Water
management projects for agriculture, including irrigation and land drainage projects; (d)
Initial afforestation and deforestation for the purposes of conversion to another type of
land use; (e) Intensive livestock installations (projects not included in Annex I); (f)
Intensive fish farming; and (g) Reclamation of land from the sea.
2. Extractive industry
(a) Quarries, open-cast mining and peat extraction (projects not included in Annex I); (b)
Underground mining; (c) Extraction of minerals by marine or fluvial dredging; (d) Deep
drillings, in particular geothermal drilling, drilling for the storage of nuclear waste
material and drilling for water supplies, with the exception of drillings for investigating
the stability of the soil; and (e) Surface industrial installations for the extraction of coal,
petroleum, natural gas and ores, as well as bituminous shale.
3. Energy industry
(a) Industrial installations for the production of electricity, steam and hot water (projects
not included in Annex I); (b) Industrial installations for carrying gas, steam and hot
water; transmission of electrical energy by overhead cables (projects not included in
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Annex I); (c) Surface storage of natural gas; (d) Underground storage of combustible
gases; (e) Surface storage of fossil fuels; (f) Industrial briquetting of coal and lignite; (g)
Installations for the processing and storage of radioactive waste (unless included in
Annex I); (h) Installations for hydroelectric energy production; and (i) Installations for
the harnessing of wind power for energy production (wind farms).
4. Production and processing of metals
(a) Installations for the production of pig iron or steel (primary or secondary fusion)
including continuous casting; (b) Installations for the processing of ferrous metals: (i)
hot-rolling mills, (ii) smitheries with hammers and (iii) application of protective fused
metal coats; (c) Ferrous metal foundries; (d) Installations for the smelting, including the
alloyage, of non-ferrous metals, excluding precious metals, including recovered products
(refining, foundry casting, etc.); (e) Installations for surface treatment of metals and
plastic materials using an electrolytic or chemical process; (f) Manufacture and assembly
of motor vehicles and manufacture of motor-vehicle engines; (g) Shipyards; (h)
Installations for the construction and repair of aircraft; (i) Manufacture of railway
equipment; (j) Swaging by explosives; and (k) Installations for the roasting and sintering
of metallic ores.
5. Mineral industry
(a) Coke ovens (dry coal distillation); (b) Installations for the manufacture of cement; (c)
Installations for the production of asbestos and the manufacture of asbestos-products
(projects not included in Annex I); (d) Installations for the manufacture of glass including
glass fibre; (e) Installations for smelting mineral substances including the production of
mineral fibres; and (f) Manufacture of ceramic products by burning, in particular roofing
tiles, bricks, refractory bricks, tiles, stoneware or porcelain.
6. Chemical industry (Projects not included in Annex I)
(a) Treatment of intermediate products and production of chemicals; (b) Production of

pesticides and pharmaceutical products, paint and varnishes, elastomers and peroxides;
and (c) Storage facilities for petroleum, petrochemical and chemical products.
7. Food industry
(a) Manufacture of vegetable and animal oils and fats; (b) Packing and canning of animal
and vegetable products; (c) Manufacture of dairy products; (d) Brewing and malting; (e)
Confectionery and syrup manufacture; (f) Installations for the slaughter of animals; (g)
Industrial starch manufacturing installations; (h) Fish-meal and fish-oil factories; and (i)
Sugar factories.
8. Textile, leather, wood and paper industries
(a) Industrial plants for the production of paper and board (projects not included in Annex
I); (b) Plants for the pretreatment (operations such as washing, bleaching, mercerization)
MALD 2010
or dyeing of fibres or textiles; (c) Plants for the tanning of hides and skins; and (d)
Cellulose-processing and production installations.
9. Rubber industry
Manufacture and treatment of elastomer-based products.
10. Infrastructure projects
(a) Industrial estate development projects; (b) Urban development projects, including the
construction of shopping centres and car parks; (c) Construction of railways and
intermodal transshipment facilities, and of intermodal terminals (projects not included in
Annex I); (d) Construction of airfields (projects not included in Annex I); (e)
Construction of roads, harbours and port installations, including fishing harbours
(projects not included in Annex I); (f) Inland-waterway construction not included in
Annex I, canalization and flood-relief works; (g) Dams and other installations designed to
hold water or store it on a long-term basis (projects not included in Annex I); (h)
Tramways, elevated and underground railways, suspended lines or similar lines of a
particular type, used exclusively or mainly for passenger transport; (i) Oil and gas
pipeline installations (projects not included in Annex I); (j) Installations of long-distance
aqueducts; (k) Coastal work to combat erosion and maritime works capable of altering
the coast through the construction, for example, of dykes, moles, jetties and other sea
defence works, excluding the maintenance and reconstruction of such works; (l)
Groundwater abstraction and artificial groundwater recharge schemes not included in
Annex I; and (m) Works for the transfer of water resources between river basins not
included in Annex I.
11. Other projects
(a) Permanent racing and test tracks for motorized vehicles; (b) Installations for the
disposal of waste (projects not included in Annex I); (c) Waste-water treatment plants
(projects not included in Annex I); (d) Sludge-deposition sites; (e) Storage of scrap iron,
including scrap vehicles; (f) Test benches for engines, turbines or reactors; (g)
Installations for the manufacture of artificial mineral fibres; (h) Installations for the
recovery or destruction of explosive substances; and (i) Knackers' yards.
12. Tourism and leisure
(a) Ski-runs, ski-lifts and cable-cars and associated developments; (b) Marinas; (c)
Holiday villages and hotel complexes outside urban areas and associated developments;
(d) Permanent camp sites and caravan sites; and (e) Theme parks.
13. Any change or extension of projects listed in Annex I or Annex II, already authorized,
executed or in the process of being executed, which may have significant adverse effects
on the environment and Projects in Annex I, undertaken exclusively or mainly for the
development and testing of new methods or products and not used for more than two
years.

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FLETCHER SCHOOL OF LAW AND DIPLOMACY

STRATEGIC ENVIRONMENTAL ASSESSMENT IN DECISION-MAKING

TOPIC: The European Union’s Approach to the concept of Strategic Environmental

Stylianos Malliaris, MALD 2010

II. Origins of the concept of Environmental Assessment

III. EU Directives on Environmental Assessment

IV. US approach on Environmental Assessment at a Strategic level

Annexes I and II to EIA Directive p. 32

Environmental Assessment (hereinafter, “EA”) is used as a generic term and can be

range of the relevant bio-physical and socio-economic disciplines), credible (being

II. Origins of the concept of Environmental Assessment

Nowadays, almost all developed countries have mandatory environmental impact

In an International Environmental Law context, it still remains doubtful if a customary

II.B. The need for a Strategic Environmental Assessment

Netherlands have used a tool called Strategic Environmental Impact Assessment (a

II.C. Strategic Environmental Assessment in EU countries22

The concept of SEA in Europe pre-existed before the adoption of EU Directive

United Kingdom: The UK developed a strategy of integration of SEA into governmental

Spain: At the federal national level integration of environmental considerations in

procedure in Castilla y León was defined in Law 8/1994 on Environmental Impact

III. EU Directives on Environmental Assessment

EU has established a mix of mandatory and discretionary procedures to assess

1. Description of the project: It shall include at minimum a description of the actual

7. Lack of know-how/technical difficulties: This developer must address at this section

III.B. Strategic Environmental Assessment Directive

Under article 3 par. 2, a SEA is mandatory (objective screening) for: (i)

1. Description of the objectives of the plan/programme

3. Description of the aspects of environment likely to be significantly affected

4. Reference to existing environmental problems, especially for areas of particular

5. Reference to the environmental protection objectives

6. Analysis of possible significant effects on the environment: It includes any kind of

9. Description of monitoring measures for the prompt implementation of SEA

decision-making process by enhancing transparency and increasing public confidence in

documentation (notably the plan/programme as adopted, a summary statement on the

III.C. Comparison and analysis of the Differences

of treating environmental issues as important parameters when developing cross-sectoral

IV. US approach on Environmental Assessment at a Strategic level

As we already discussed, NEPA requires an EIS examining the likely environmental

The CEQ suggests that an agency consider a streaming-line procedure by preparing a

IV.B. Comparison with the EU approach

mitigation measures. Nevertheless, CEQ Regulations pose an obligation to US

In a more theoretical level, a US scholar believe that a SEA is frequently considered to be

Nowadays, environmental degradation is a hotly debated issue in various international

OECD publication, Applying Strategic Environmental Assessment, Good Practice

Therivel R, Wilson E, Thompson S, Heaney D, Pritchard D., Strategic environmental

Sadler B, Brooke C., Strategic environmental appraisal, Report of the International

Verheem RAA, Tonk JAMN. Enhancing effectiveness, strategic environmental

Thissen W., Strategic environmental assessment at a crossroads. Impact Assess Proj

Fisher Th., Strategic Environmental Assessment in post-modern times, Environmental

OECD, Good Practices for Environmental Impact Assessment of Developing Projects,

Partidαrio, M. (1999), Strategic Environmental Assessment: Principles and Potential, in J.

Council of European Community (2001) Environmental Impact Assessment Guidance on

Council of European Community (2001) Environmental Impact Assessment Guidance on

Council of European Community (2001) Environmental Impact Assessment Guidance on

Council of European Community (2003) Report on the Application and Effectiveness of

Sadler B, Verheem R. Strategic environmental assessment: status, challenges and future

European Commission’s Guidance on the implementation of Directive 2001/42/EC on

Imperial College, London, Final report to the European Commission on “The

ANNEX I to Consolidated EIA Directive

PROJECTS SUBJECT TO ARTICLE 4 (1)

1. Crude-oil refineries (excluding undertakings manufacturing only lubricants from crude

6. Integrated chemical installations, i.e., those installations for the manufacture on an

9. Waste disposal installations for the incineration, chemical treatment as defined in

21. Installations for storage of petroleum, petrochemical, or chemical products with a

Strategic Environmental Assessment - Stylianos Malliaris' Paper

Strategic Environmental Assessment - Stylianos Malliaris' Paper