Ecoclub has filed a complaint to the Aarhus Convention. The state procedures for strategic environmental assessment (SEA) and environmental impact assessment (EIA) in Ukraine are flawed and do not ensure proper public participation. These problems result in the construction of hazardous to human health and the environment facilities and encourage cooperation with unscrupulous investors.
Ukraine is moving towards the EU, where EIA is one of the critical instruments of environmental policy. Therefore, it must be reformed and brought in line with European requirements for the procedure’s transparency, fairness, and efficiency. Although Ukrainian legislation meets certain European requirements, its implementation is not always able to prevent possible hazards to the environment and human health.
So what is the essence of the Ecoclub’s complaint, and what happens next?
In 2019, the Kronospan woodworking company announced the start of construction near Rivne. The plant is intended to process up to 36% of commercial roundwood in Ukraine (the developer estimated the approximate need for commercial roundwood supplies at 3,277 thousand m3 per year). The Ecoclub’s experts analyzed the environmental impact assessment report and found that the plant was permitted to operate despite document inaccuracies. We also participated in public consultations on the report and were suited by Kronospan for criticizing the EIA conclusion.
During these activities, we learned that the EIA system in Ukraine does not fulfill its function of ensuring consideration of public opinion, and their right to criticize polluters must be defended in court. That is why the long-lasting lawsuits against the company and the authorities for ignoring public comments prompted us to appeal to the Aarhus Convention Compliance Committee – an international treaty on access to information and public participation in decision-making. Its purpose is to promote the protection of the rights of the people to live in an environment that is safe for human health and well-being. We expect the decision of the Aarhus Convention to force the Ukrainian government to improve its EIA and SEA procedures.
In the spring of 2023, the Aarhus Committee began consideration of the complaint. This shows that the committee has reason to believe that public participation is not fully ensured in the process of EIA and SEA in Ukraine.
The substance of the complaint
The EIA and SEA legislation contains systemic inconsistencies that need to be improved because:
– The law should provide for the possibility of considering several alternative locations for construction before permitting procedures start (EIA, land development plan, getting a construction permit). However, this is almost impossible in practice, as investors would not buy or rent several sites in different locations simultaneously. This fact makes it impossible to “consider geographical alternatives” as the law prescribes.
– The report on Strategic Environmental Assessment becomes a component of the land development plan as an “Environmental Protection” section. Therefore, it does not contain the necessary research information required by law. In particular, the report on SEA does not include information on the study of alternative measures to compensate for and mitigate possible environmental and public health risks. Therefore, during public consultations on the SEA, participants do not receive complete information about environmental impacts, which contradicts the law.
The LDP does not contain an environmental protection section or mention the completed SEA. The SEA report is a separate document that violates the law On regulating urban planning documentation.
– The public does not always have a say in the early decision-making stages. In the case of Kronospan, the permit for pre-construction preparatory works may be issued even before public consultations on the LDP and SEA. Similarly, the plant may start building ancillary facilities, such as warehouses, access roads, etc., before discussing the EIA and SEA.
– Conflicts of interest make it impossible to assess and approve permits independently. Authorities prioritize the interests of businesses over those of the public. Local authorities encourage business development and, at the same time, are responsible for permitting procedures. In the case of Kronospan, the Rivne Regional State Administration, which is interested in attracting investments, issues an order to sell a land plot for investment projects. The Department of Environment, tasked to ensure access to information, public participation in decision-making on implementing these projects, and carry out an EIA, is subordinated to the administration.
– Insufficient coordination between EIA and other related procedures (EIA, SEA, LDP, construction permits). These procedures need to be more consistent: a construction permit can be obtained in parallel to developing urban planning documentation or SEA.
In the case of Kronospan, after land acquisition, the plant was simultaneously developing the LDP, the SEA, and EIA reports and carrying out pre-construction preparatory works. As a result, they received a construction permit. Even at the planning and consultation stages, Kronospan began pre-construction preparatory works.
What provisions of the Convention were violated in the case of Kronospan
– Each Party shall ensure early public participation when all options are open and effective public participation can occur. Relevant information subject to public access should include an “overview of the main alternatives”;
– the public can participate in the preparation of plans “within a transparent and fair framework,” in particular “when all options are open” and “due account is taken” of the results of consultations. (In the case of Kronospan, public participation took place when the decision to sell the land and start construction works had already been made);
– establishing a “clear” and “transparent” structure, particularly regarding public participation and access to justice.
Currently, The Aarhus Convention Compliance Committee is collecting, studying, and processing the materials received from Ecoclub and the Ministry of Environmental Protection and Natural Resources of Ukraine.
If the Committee decides that Ukraine is not in compliance with the Convention, the Government of Ukraine may receive a warning and a request to bring its national legislation and practices in line with the provisions of the Convention.
If Ukraine fails to comply, the Committee may suspend special rights and privileges under the Convention.
Read details:Overview of the Complaint (42 downloads )
Read the full content of the Complaint (in English).
– EIA – environmental impact assessment – a permitting procedure must be completed by a project anticipating significant environmental impact. EIA concludes with permission or prohibition of the activity by the Ministry of Environment or the local administration. This conclusion is based on the EIA report and is issued after public consultations. (The Law of Ukraine on Environmental Impact Assessment)
– SEA – strategic environmental assessment is aimed at assessing, preventing and reducing environmental impacts from the implementation of state planning documents (plans, programs, strategies). One of the SEA outputs is a report (when an LDP is developed, the output becomes a section of the report (Law of Ukraine on Strategic Environmental Assessment).
– LDP – a detailed plan of territories (both urban planning documentation at the local level and land management documentation that defines the planning organization and development of the territory), which ends with the approval and publication of documentation at the local level (Law of Ukraine On Regulation of Urban Planning Documentation).
– Aarhus Convention – the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Text of the convention).
This article was created within the framework of the Environmental Policy and Advocacy Initiative for Ukraine, implemented by the International Renaissance Foundation with the financial support of Sweden and within the framework of the project “Closing the Loop: A Just Energy Transition Designed by Cities and Regions” of the European Commission.
The opinions, conclusions or recommendations are those of the authors of this announcement and do not necessarily reflect the views of the Government of Sweden or the position of the European Union. The content of this announcement is the sole responsibility of the NGO Ecoclub.