The obtainment of EIA conclusions can take up to 3 years

06/ 10/ 2021

Today, the VRU Committee on Environmental Policy and Nature Management will consider draft laws №5766 and №5766-1 which are related to the field of environmental impact assessment (EIA). Both legislative initiatives amend Law №2059-VIII on EIA and provide a range of positive novelties which include the electronic exchange of documents and information, increased deadlines for companies to publish a notice of planned activities subject to EIA, and the announcement of the start of public discussion of the EIA report, shortened time to obtain an EIA conclusion from 25 to 10 working days, etc. Meanwhile, the EBA experts draw attention to some ambiguous provisions of draft Law №5766 and draft Law №5766-1, which need to be revised. For electronic document management, it will be necessary to amend the bylaws, which currently provide for the paper exchange of information. Therefore, we propose to provide a certain transition period to renounce the use of paper documents and move to electronic document management. The proposal for a preliminary analysis of the EIA report within 15 days, as a result of which it is determined whether or not the company needs to provide additional information, is ambiguous. In fact, it is the introduction of an additional stage in the EIA procedure. First, the current EIA legislation already establishes an exhaustive list of information to be included in the EIA report. Secondly, the proposal runs contrary to the principles of Directive 2011/92/EU on EIA where the request from the competent authority for additional information is optional. Third, it can create conditions for abuse in decision-making by the authorities and delay the EIA procedure from 30 working days to 3 years. For example, a company needs to carry out additional EIA on the growing season of plants in the area where it plans its activities, which can be done only in a certain period of time, migration of animals, birds and etc. Thus, increasing the research period for a certain environmental component may slow down or completely stop business investment projects. Therefore, we propose to exclude this provision and instead establish the possibility for the company to provide additional information no later than 5 working days before the end of the public discussion. Proposals to establish the grounds for refusing the issuance of EIA conclusions are also subjective and ambiguous. Thus, those grounds are not clearly defined in the current legislation. These include violation of the requirements for the publication, placement, or disclosure of a notice of planned activities subject to EIA and the announcement of the start of public discussion on the EIA report; as well as prohibitions or restrictions established by law, which make it impossible to carry out the planned activities, etc. Also, there are reasonable grounds to consider that the negative impact of planned business activities on Emerald Network will result in negative consequences for the environment. Besides, draft Law №5766-1 additionally introduces the term “carrying out activities on the grounds of public necessity”. Relevant provisions are contained in other draft laws bills governing the management of the Emerald Network - №4461-d and №4461-1. The Association has consistently advocated a comprehensive approach to regulating the management of the Emerald Network in Ukraine and considers the inclusion of these provisions in draft laws №5766 and №5766-1 premature. Meanwhile, some changes that would greatly simplify the implementation of EIA for business are not presented in the legislative initiatives. Thus, we are talking about: the mechanism of revision of EIA documents with a possibility of repeated submission without having to pass all procedures anew; procedure for coordination between companies and permitting authorities of requirements for post-project monitoring and adjustments; exemption from environmental impact assessment if EIA has been already conducted on the stage of drafting project documentation. Therefore, the adoption of draft laws №5766 and №5766-1 in the current versions, unfortunately, will not help to improve the EIA procedure. On the contrary, it can create a number of obstacles to obtaining an EIA conclusion, lead to a potential for abuse by the authorities, increase the duration of the EIA, which in turn can lead to significant losses for business and reduced investment. Therefore, the European Business Association hopes that the draft laws will be finalized considering the proposals of the business community. Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.

Meanwhile, the EBA experts draw attention to some ambiguous provisions of draft Law №5766 and draft Law №5766-1, which need to be revised.

For electronic document management, it will be necessary to amend the bylaws, which currently provide for the paper exchange of information. Therefore, we propose to provide a certain transition period to renounce the use of paper documents and move to electronic document management.
The proposal for a preliminary analysis of the EIA report within 15 days, as a result of which it is determined whether or not the company needs to provide additional information, is ambiguous. In fact, it is the introduction of an additional stage in the EIA procedure. First, the current EIA legislation already establishes an exhaustive list of information to be included in the EIA report. Secondly, the proposal runs contrary to the principles of Directive 2011/92/EU on EIA where the request from the competent authority for additional information is optional. Third, it can create conditions for abuse in decision-making by the authorities and delay the EIA procedure from 30 working days to 3 years. For example, a company needs to carry out additional EIA on the growing season of plants in the area where it plans its activities, which can be done only in a certain period of time, migration of animals, birds and etc. Thus, increasing the research period for a certain environmental component may slow down or completely stop business investment projects. Therefore, we propose to exclude this provision and instead establish the possibility for the company to provide additional information no later than 5 working days before the end of the public discussion.
Proposals to establish the grounds for refusing the issuance of EIA conclusions are also subjective and ambiguous. Thus, those grounds are not clearly defined in the current legislation. These include violation of the requirements for the publication, placement, or disclosure of a notice of planned activities subject to EIA and the announcement of the start of public discussion on the EIA report; as well as prohibitions or restrictions established by law, which make it impossible to carry out the planned activities, etc. Also, there are reasonable grounds to consider that the negative impact of planned business activities on Emerald Network will result in negative consequences for the environment. Besides, draft Law №5766-1 additionally introduces the term “carrying out activities on the grounds of public necessity”. Relevant provisions are contained in other draft laws bills governing the management of the Emerald Network – №4461-d and №4461-1. The Association has consistently advocated a comprehensive approach to regulating the management of the Emerald Network in Ukraine and considers the inclusion of these provisions in draft laws №5766 and №5766-1 premature.

Meanwhile, some changes that would greatly simplify the implementation of EIA for business are not presented in the legislative initiatives. Thus, we are talking about:

the mechanism of revision of EIA documents with a possibility of repeated submission without having to pass all procedures anew;
procedure for coordination between companies and permitting authorities of requirements for post-project monitoring and adjustments;
exemption from environmental impact assessment if EIA has been already conducted on the stage of drafting project documentation.

Therefore, the adoption of draft laws №5766 and №5766-1 in the current versions, unfortunately, will not help to improve the EIA procedure. On the contrary, it can create a number of obstacles to obtaining an EIA conclusion, lead to a potential for abuse by the authorities, increase the duration of the EIA, which in turn can lead to significant losses for business and reduced investment.

Therefore, the European Business Association hopes that the draft laws will be finalized considering the proposals of the business community.

Be the first to learn about the latest EBA news with our Telegram-channel – EBAUkraine.