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Bilateral agreements for the application of the un-ece convention on eia in a transboundary context
BILATERAL AGREEMENTS FOR THE APPLICATION OF THE UN-ECE CONVENTION ON EIA IN A TRANSBOUNDARY CONTEXT Jan Jaap de Boer Ministry of Housing, Spatial Planning and the Environment (VROM), The Netherlands
Bilateral agreements are an important element in implementing and applying the UN-ECE Convention on EIA in a transboundary context. The Convention set the framework regulating the main topics. An agreement with surrounding countries is necessary to develop standard ways of application of EIA in transboundary cases. Careful preparation avoids delays and unnecessary friction. The main elements and solutions of bilateral agreements are discussed, based on experiences in The Netherlands, Germany and Flanders (Belgium). 1999 Elsevier Science Inc.
1. Introduction Before the UN-ECE Convention on environmental impact assessment (EIA) in a transboundary context came into force, there already was some ad hoc, transboundary exchange of documents as well as involvement in decision-making. The Convention has now formalized this into rules and obligations. (UN-ECE 1997). The parties have committed themselves to prevent, reduce, and control significant negative transboundary environmental impacts (Article 2.1 of the Convention). The country of origin takes the responsibility for this in cooperation with the possibly affected country. To achieve that goal it prescribes a number of steps. The implementation and application of the convention implies organizing a process of exchange of information and comments with more participants than usual. In comparison to cases without transboundary impacts, it inAddress requests for reprints to: Jan Jaap de Boer, VROM (ipc 660), p.o. box 30945 2500GX Den Haag, The Netherlands, E-mail: [email protected] ENVIRON IMPACT ASSESS REV 1999;19:85–98 1999 Elsevier Science Inc. All rights reserved. 655 Avenue of the Americas, New York, NY 10010
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volves more authorities, public groups, and advisers. It also involves other issues such as the translation of documentation. These are not supposed to cause delays. Bilateral agreements, mentioned in Article 8 and Appendix VI of the Convention, are a way to make all this more efficient. The Netherlands has prepared draft bilateral agreements with its direct neighboring countries Germany and Belgium. This article is based on that experience and on discussions with other signatories and parties of the Convention, held at workshops in Baarn, The Netherlands (1994) and in Moldova (1997). 2. Problems Encountered Practical experience with transboundary cases show several possible or real problems, both large and small. The experiences in The Netherlands show some typical cases of projects with transboundary impacts. The first one is a large electric power plant planned for the shore of a river delta in the northern part of The Netherlands. The plant has a capacity of 1,200 MW and is fired with natural gas. It uses water from the tidal area as cooling water. The project caused hardly any comment from the local Dutch community, but several from the nearby German island of Borkum. Local residents expressed concerns about the visual impacts and air quality. These concerns were taken into account in the decision-making. The authorities have decided that consultation on the impacts was not necessary. The second case is a new railroad for containers from Rotterdam harbor to the German border. In The Netherlands, a new railroad line will be constructed up to about 1 km before the border crossing. At that point it will join the existing railroad, which has enough capacity to accommodate the new traffic. The impacts of the new railroad would be within the Dutch territory, but the extra traffic will impact the existing line into Germany. Mitigating measures seem unnecessary on the German side. The Dutch EIA was made public in Germany and comments were received. A difficult issue raised was that German authorities were asked by the German residents to mitigate the impacts of the extra use of the railroad, while at the same time these same authorities were not legally required to act on the matter. The third case is the development by two local communities on both sides of the Dutch-German border (Heerlen and Aachen) of a joint industrial area. The site lies partly in The Netherlands and partly in Germany. Although on the Dutch side the threshold for obligatory EIA was not passed, both cities have decided to make a joint EIA by combined procedures. This combining of two very different procedures is an act of balancing, but it has succeeded. Success grew from the will of both cities to cooperate and to develop this area. One result was a complete bilingual EIA documentation.
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The fourth example is a project of a storm surge barrier in the river mouth of the Ems, in northwest Germany. It will have transboundary impacts on The Netherlands and the nature reserve (bird and habitat sanctuary), the Dollart, on both sides of the border. The tidal flow and the quality of the water (saltwater–freshwater mixture of ecologically productive quality) probably are impacted. EIA documentation has been exchanged. Public participation on both sides, especially from natural protection non-governmental organizations (NGOs), is high. The consultation has started and is concentrated on the facts of the impacts, their significance, and the possibilities to mitigate. The consultation process is ongoing. The German side has accepted the conditions for mitigating the transboundary impacts. These examples show the diversity of the projects and the range of aspects to be taken into account in application of the Convention. Several problems may occur. The first is that, although experts may expect transboundary impacts, there is no exchange of information and involvement of the party that expects to be affected. Exchanges also can be very late, putting the participation of the affected party under pressure and causing delays in decision-making in the party of origin. Such a situation can occur when regional and local authorities are not aware of any obligation to the Convention. Even if they are aware, it is not certain that they know how to apply the Convention and who should be involved on the other side of the border. Another problem is: Which documents are to be exchanged and in what sequence? This can be a problem especially in the first steps prescribed by the Convention. Closely connected with the documents is the question: What should be translated? Who is responsible, and who will bear the costs? The extent of the transboundary impacts of a particular project can be uncertain. And public participation deserves special attention. The public might be even less prepared to participate than in cases without transboundary impacts. How do they know which procedure applies and to which authority they should direct their comments? Thus, application of the Convention in concrete cases needs careful attention and preparation. 3. Procedural Steps of the Convention The main goal of the Convention is the avoidance and mitigation of transboundary impacts. The approach chosen in the Convention is that the country of origin opens its EIA and decision-making procedures to the public and to the authorities on the far side of the affected border and takes their comments into account (Articles 2.6 and 4.2). The way to do this is to apply EIA and decision-making procedure as if there were no border at all, which is very simple and modern, but not yet common practice. In the past, this sort of openness is very unusual. Quite
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TABLE 1. Flow Chart of the Convention 1. Notification (articles 3.1, 3.2) ↓ 2. Confirmation of participation (article 3.3) ↓ 3. Transmittal of information (articles 3.5, 3.6) ↓ 4. Public participation (articles 3.8, 2.6) ↓ 5. Preparation of EIA documentation (article 4, App. II) ↓ 6. Distribution of the EIA documentation for the participation of the authorities and public in the affected country (article 4.2) ↓ 7. Consultation between the parties (article 5) ↓ 8. Final decision (article 6.1) ↓ 9. Transmission of final decision documents (article 6.2) ↓ 10. Post product analysis (articles 7.1, 7.2, App. V)
a number of projects in the border region—with transboundary impacts— illustrate this. The application of the Convention is shown in Table 1. Generally speaking, the steps shown in Table 1 look very much like modern EIA process connected to a decision. However, there are a few extra steps that require special attention.
Three Extra Steps The first two extra steps are notification and confirmation of participation. The third extra is consultation between the parties, the seventh step. Notification is the step after a conclusion is reached in the country of origin that there is a project with significant transboundary impact to which the Convention applies. The notification should be at the earliest possible stage. Its goal is to alert the relevant authorities and to prepare them on the next question: “Does the possibly affected country want to participate?” The content of a notification is formulated generally in Article 3.2: information on the proposed activity, available information on the transboundary impacts, the possible decision, and the time schedule for the answer. Information mentioned in Article 3.5 also may be included: information on the EIA procedure and schedules for comment, more information on the activity, and its possible transboundary impacts. The second step is the confirmation of participation. In the notification, a “reasonable” time frame for this answer should be given. There should
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be enough time to reach an informed decision that does not delay the EIA process unnecessarily. It is important that this step decides whether or not the Convention be applied. A negative answer or, even more importantly, no answer at all means that the Convention will not apply (Article 3.4). The seventh step, the consultation, is an extra element that requires attention. This step is added because the Convention is dealing with independent states. The involved states will discuss what should be done to make the transboundary impacts acceptable to the affected party. 4. Convention Steps and the EIA Procedure One way to discover how easy (or difficult) it would be to apply the Convention is to compare the steps of the flow chart of the Convention with the steps and documents available in the national EIA procedure. One soon will discover what already is in place and what needs to be added. The comparison may concentrate first on the formal steps of EIA procedure. But it also will be necessary to look into the informal, the usuallyfollowed-but-not-regulated process, to see how this could function in application of the Convention. This comparison could be done by country in isolation, but experience shows there are clearer results if it is done with the neighboring parties during preparation of a bilateral agreement. This exercise is useful in two ways. It will show how to use existing EIA procedure and process and what must be modified in transboundary cases. It will show a possibly affected country what it can expect in terms of documents, steps, and time schedule. It will clarify the EIA process, including the decision-making process. We did this comparison several times in the groups preparing the bilateral agreements, and we regularly discovered elements that led to easier solutions to problems. Each party also became much more informed about EIA and decision-making of the other party, which is a very important element in developing the application of the Convention. A situation with transboundary impacts already is sensitive and potentially problematic. Being informed of the other party’s procedures and having mutual trust lessens tensions. Countries with a unified system of EIA (unified means that for all types of projects, the same procedure applies, possibly with different authorities) certainly are in a better position here than countries with a variety in EIA procedures, because a unified system is easier to learn. The notification steps illustrate the usefulness of this comparison. The first steps of the Convention are an early warning, asking the neighboring partner to participate and asking for supplementary information. After a positive reply, this is followed by public participation before the EIA documentation is completed (Article 3.8). Systems with a formal scoping process have a clear advantage at this stage of applying the Convention. In such a case, there will be information
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on the project as basis for the scoping process. This information possibly can be of use for the notification. Only “possibly,” however, because content requirements of the notification in Article 3.2 and time limits may apply. In the scoping document, it may be necessary to mention separately the possible transboundary impacts and their perceived significance. It is most efficient when the scoping document already contains information that should be supplied after confirmation of participation (mentioned in Articles 3.5 and 3.6). Then it would be possible to proceed without delay. Still, in such cases, confirmation is necessary to ensure that both parties are applying the Convention. In countries with informal scoping, the parties easily can decide to do scoping without looking to the border. The same authorities and public and environmental NGOs on both sides of the border will be invited to participate in the scoping process. A variant on the formal and informal scoping process is where scoping is done only at request of the developer. In this case, it is advisable—in cases of possible transboundary impact—that the developer request scoping automatically. If there is no scoping process at all, then there certainly will be problems in applying the first steps of the Convention. Notification and public participation before the preparation and completion of the EIA-documentation may need to be established and enforced by new regulation. 5. Is there a Need for Harmonization? In discussions on application of the Convention, frequently the question surfaces about harmonization of the EIA systems of parties in transboundary cases. Almost everywhere there are differences in EIA systems and decision-making processes between countries. Differences are found in public participation, the content requirements of the EIA documentation (e.g., the study of alternatives), and decision-making. The differences in public participation raise the question of harmonization: should not this participation and access to it be equal to cases without transboundary impacts? The Convention does not go into this problem of harmonization directly. It approaches it by two routes. First, the Convention requires an EIA system that complies with its minimum requirements. These minimum requirements are, in principle, fulfilled in each party that has ratified the Convention. Second, the country of origin is not allowed to discriminate and give less opportunities to both public (including NGOs) and authorities across the border than to those in the country of origin. One must apply the procedure as if there were no border at all. Signals of this approach are in the Articles 2.2 and 3.1 of the Convention. Full harmonization means that both parties equilibrate their systems for cases with transboundary impacts. In my view, it will be difficult to propose to Parliament to change the EIA and decision-making regulations with this
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as the only motivation. Parliamentarians will tend to insist that the neighbor make the changes. One conclusion here is that the parties simply must accept differences in procedures and cases, except when they are a result of non-implementation of the Convention. Its minimum requirements give the basis of a common minimum regulation of the EIA procedure and the linkage with decision-making. A second conclusion is the need to inform the public and the authorities about the application of the Convention in concrete cases. It is necessary to develop extra information material, to ensure that the public and the authorities on the affected side can act in conjunction with formal procedures of the country of origin. 6. Bilateral Agreements In Article 8 the Convention mentions bilateral or multilateral agreements or other arrangements for implementation. Appendix VI gives elements for such agreements. In this text, the words “bilateral agreement” are used frequently. What does this mean? The word agreement suggests formality, signatures, and finality. Here it is used only in a very general way. It can have the form of a treaty, a formal agreement at a high level, or an exchange of letters between the national ministers of the environment or similar arrangements. It is essential that the parties concerned have discussed and agreed on a fixed way of operating in transboundary cases. To give two examples: with Germany, The Netherlands has reached a draft agreement (The Ministry of Housing, Spatial Planning and the Environment 1995) that probably will be agreed on through an exchange of letters between the national environmental ministers. When this will happen is not clear, but in the meantime, the draft agreement is being distributed to the appropriate authorities and applied in transboundary cases. With the Flanders region of Belgium there is a formal arrangement prepared and concluded by the relevant and provincial authorities on both sides (Samenwerking Vlaanderen–Zuid-Nederland, 1995). The national authorities have supported this and were involved fully in the preparation of this arrangement. Avoiding delays is one goal, but the parties should be aware that an application in a case with transboundary impacts certainly will take more time than in a case without such impacts. To make this extra time not unnecessarily long, preparation in the form of an bilateral agreement will be useful. A bilateral agreement will deal mainly with: • •
The steps or a flow chart for the EIA, The roles and responsibilities of authorities,
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• •
The contact points, and The field of application (cases and determination of significance).
Detailing the Flow Chart The steps or the flow chart of the bilateral agreement will be an elaboration of the flow chart of the Convention. This means adding details to this flow chart, for instance, describing who is sending which document to whom. To elaborate this for the notification phase: the first question is, which authority in the country of origin has the first knowledge of a project and can determine whether there are transboundary impacts to be expected? This is, for instance, the competent authority for the said type of projects in the country of origin. This authority could be chosen as the one that notifies the affected country. But to which authority in the affected country? This could be an authority at the regional level, with probably the same role for that type of project. The affected side has to organize, where necessary, the involvement in the notification and the decision-making of other relevant authorities. The Canadian Environmental Assessment Agency has prepared a interesting paper on the contents of a notification that has been accepted by the first Meeting of the Parties in Oslo this year. Publication by the UN-ECE secretariat is forthcoming. There are a number of administrative steps in this notification. The bilateral agreement could spell out these steps in great detail. To give an example, Authority A of the country of origin sends the notification to Authority B in the possible affected area. The notification consists of document X from the EIA procedure of the country of origin supplemented with information Y (which is normally absent in documents for cases without transboundary impacts). In the letter accompanying the documents X 1 Y, a timelimit of, say, 2 weeks will be given for confirmation of participation. The number of copies of that document X 1 Y and the language in which it will be sent could be specified. The agreement may detail further that the address for the notification is Authority B, Environmental Directorate, and transboundary department (name, address, telephone and tele fax numbers, E-mail). This type of detail could be added when the parties find this useful. Here, the comparison introduced earlier, of the Convention flow chart with the steps of the EIA procedure, proves its value. To discuss the previously mentioned detailing of the steps, a clear understanding by both parties of the EIA processes and decision-making of their counterparts is necessary. This exchange of information and growth of insight takes a lot of time, but it proves to be worthwhile. Dictating rules certainly is not the way to make a bilateral agreement. A party will not tell another party how to do the transboundary exchange, but the parties will to sit together and discuss and develop the basic understanding of the agreement.
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Points of Contact The definition of the point of contact is important. In the example of the notification mentioned previously Authority B in the affected country could play the role of contact point. Then B is the authority who is informed first and has responsibilities to other authorities in the affected country. This is not a minor responsibility, because it can decide on the application of the Convention. No answer on the question of participation means no application (Article 3.4). Another important role is to help Authority A in the country of origin. This help function is valuable in solving questions for the involvement of other authorities and institutions and providing the addresses and names of contact persons. For example, later in the process the public has access to the documents. This can mean that the EIA documentation must be available at town halls in the affected area. The point of contact can help to find these places, their opening times, and so on. This administration, if not prepared, can take a lot of time when red tape should not frustrate the time schedule. If the choice is made to give main responsibility for the application to the regional level (as The Netherlands did in the provinces with borders to Germany or Belgium; these are the points of contacts), then it is necessary to define when and how the national level is informed. This is because consultation must always involve the national authorities responsible for international relations. A one-page message of a transboundary case may be sufficient to inform the environmental authorities at the national level. As the case progresses to the consultation stage, full documentation usually will be necessary.
Translation Translation of documents into the language of the affected area is necessary for equal access to the documents by both the authorities and the public. The translation must be of good quality to avoid misunderstandings. The subject of translation causes problems, and the Convention has no article on this subject. It must be possible for the authorities and public to read at least the transboundary impacts that are possible in their area and the general characteristics of the project and the mitigating measures. This will imply a translation of the transboundary impact sections and any parts necessary to understand the project. A complete translation could be easier, but it may require more work and costs. It also may require extra legislation to transfer this responsibility and cost to the developer (following the polluter pays principle), depending on existing regulation. The general line is that the country of origin is responsible for translation. If this looks difficult at first sight, one should realize that the country of origin in one
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case will be the affected country in another case, and costs will tend to equal out over time.
Costs Other costs result from the public announcements in newspaper of transboundary impact projects. The general rule (the country of origin is responsible) is applicable, but one may choose a different solution stipulated in a bilateral agreement. Leaving the publications to the affected party may, however, influence the speed of the procedure. If a party wishes to maintain speed in the procedure, then it will choose to do this and not to wait until the other has time for it.
Comments of the Public Routing of the comments of the public is left open in the Convention. Following Article 3.8, transmittal of comments and objections to the competent authority in the country of origin is either direct or through the party of origin. It is therefore necessary to choose and determine the standard route. A preference for a direct transmittal will exist where avoiding delays is important. It also avoids questions as to whether the authority or point of contact in the affected country has to process (i.e., to summarize) the comments or even to decide to support them. The translation of comments is up to the public, or otherwise it is a task for the country of origin. Members of the public who want to have influence probably will translate and send copies to their authorities to get as much support as possible. Public hearings are not required in the Convention. Several EIA procedures and decision-making procedures have obligatory hearings. According to the principles of the Convention, an invitation and participation of the public and authorities of the possible affected area is obligatory. As a matter of good relations, interpretation should be provided where necessary. This is an extra reason for careful preparation and confirming participation in a hearing. Otherwise, the party of origin may incur the costs of interpreters without needing them.
Field of Application An important subject for a bilateral agreement is definition of the cases. The Convention has Appendix I, with a list of 17 activities that are covered. This is a minimum list, because Article 2.5 of the Convention states that the parties shall enter into consultation over other, unlisted activities that may have adverse transboundary impacts. In addition to these unlisted activities, there is the need to specify the vague definitions in the Appendix I (major pipeline, deforestation of large areas and so on).
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The easiest way to solve this problem is to start with the application areas of the parties. They cover and specify the requirements of the Convention, because they are also an implementation of the Convention. The next step is to discuss together the thresholds or other specifications and conclude whether they are acceptable for the expected transboundary situations. The simplest way of defining the application is to accept the field of application of EIA in the parties of the agreement, with all the differences intact. Harmonizing is possible, but usually will take much discussion and time. The next step in application of the Convention is determination of the significance of the transboundary impacts. This can be decided on a caseby-case basis. Several methodologies for the determination are presented in the report Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context (UN-ECE 1996, pp. 47– 62). A less precise, but more automatic, way is to use certain zoning. If a case is located a short distance from the border, then a transboundary impact is supposed and notification is obligatory. For larger distances, an abbreviated list may be used. This automatic way is simple, but is will result in more notifications than in a very strict application. More notifications certainly are a contribution to a good relationship between the parties, but they also generate more costs. One solution to this problem is to give as country of origin a conclusion in the notification on the significance of the transboundary impacts, then to ask the possibly affected party whether it draws the same conclusion. In this way, application of the Convention stops right there. If there is uncertainty or discussion about the conclusion, then it is better to apply the Convention. Discussion of cases and how to deal with them in bilateral agreement is time-consuming. After a few years of experiences, a more refined approach may be possible.
Making of a Bilateral Agreement Preparation of a bilateral agreement will involve parties at the national level. This is because it involves international relations with another country. The Environmental Ministry, responsible for EIA, could take the lead. In federal states, another combined approach may be necessary to handle all the different responsibilities. The involvement of the Ministry of Foreign Affairs may be useful. Later in the application, assistance from the embassy can prove valuable to verify situations and to find the relevant authorities. Regional authorities, when they have an important task in the application, may be invited to the table. This can be in a later stage or from the beginning, depending on their role and position. There is much to discover during preparation of the bilateral agreement. Detailing steps in administration clarifies what should be done by whom.
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The longer the list with details, the more it looks like a difficult and exhausting process. But the basics are simple: the application of the procedures as if there is no border. 7. Consultation Consultation is one of the most important steps of the Convention. Article 5 states that the party of origin enters into consultation with the affected party concerning, inter alia, potential transboundary impacts and the measures to reduce or eliminate these impacts. The consultation may be related to possible alternatives, including the no-action alternative and possible mitigating measures and monitoring. The list of subjects ends with any other appropriate matters relating to the project. The conclusion is that a consultation can cover every aspect of a proposed project with transboundary impacts. The concept of consultation originates from the area of international relations. It is a discussion between national states. Consultation will not necessarily end in consensus. Consultation may take the form of a negotiation, but without the obligation to reach a common solution. The Convention does not require that a consultation end with consensus. The reason for this is clear: the power of decision-making is not changed by an application of the Convention; it stays in the country of origin. But it must be remembered that the goal of the Convention is to avoid transboundary impacts or to mitigate the impacts to an acceptable level. Acceptable means that the impacts are reduced to a level acceptable by the affected country, its inhabitants, and the country of origin. Still, the decision on the project stays at the competent authority of the country of origin. That authority must take into account the result, if there is any, or the contents of the consultation along with the other comments received (Article 6.1). Consultation involves the state at the national level in the discussion. This is because it is about the relation between the national states: does the affected state accept the impact on its territory or not? The actual decision-making power is, in many cases, at the regional level, not at the national level. In many cases, the regional level will exchange documents and comments. The extra involvement of the national level requires a clear route at an early stage, at least to alert the national level that there is a case of transboundary impacts and an exchange of documents. As Article 5 states (the party of origin shall enter into consultations), the Convention supposes that there always is consultation. Practical experience suggests it is useful to include a step in a bilateral agreement, to determine whether the affected country wants a consultation or not. Maybe the possibly affected country is convinced already by the documents about the mitigation and the resulting level of impacts, and consultation is not neces-
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sary. The offer to enter consultation is then seen as the application of the obligation, following from Article 5. Consultation is the final phase of the exchange of documentation and information. It comes close to the decision-making in the party of origin. One could be frightened by it, but at the same time there probably is the reassuring feeling that environmentally bad projects are unpopular, and that next time the roles may be reversed—the country of origin becomes the affected country. 8. Further Reading on Transboundary EIA In the Environmental Series of the UN-ECE, results of several task forces and working groups on aspects of the Convention are published. Number 6 deals with transboundary EIA and publishes papers from task forces and workshops on methodological, legal, administrative, and institutional aspects of the Convention. That material is valuable in explaining the Convention and for its application. In the work program as defined by the first Meeting of the Parties in Oslo in May 1998, there is much attention on practical application. The results of the program will be published after the second meeting of the parties in the year 2000. 9. Summary The Convention on EIA in a transboundary context gives the framework for the exchange of information, comment, and consultation on cases with significant adverse transboundary impacts. It is a framework with minimum requirements for the process of involving the possibly affected area, preparation of the EIA documentation, consultation between parties, and accounting for the results in decision-making. The central theme of this cooperation is to make no distinction between the affected area at both sides of the border in the EIA and decisionmaking procedure. For efficient application, more detailed arrangements are necessary. Although an ad hoc application is possible, preparation and a common approach will have benefits. Because a project with significant transboundary impacts already is controversial, it is best to avoid extra stress and pressure. A bilateral agreement with a clear definition of the authorities, their roles and tasks, organizations of public participation, and other aspects will diminish the pressures around the application. Such an agreement must be based on a shared view of the contents of the Convention and a mutual understanding of the processes and procedures of the concerned parties. This trust will form an important success factor in the application. Making a bilateral agreement will contribute to it. Experience in application of the Convention is an important source of developing and modifying the arrangements. Mistakes are challenges for
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improvement, and experience will bring routine. It is not necessary to wait with the application until the agreement is finalized. Apply the Convention, it works. Application will improve on the basis of learning by doing. The author wishes to thank his colleague Janny Ratelband, who is working daily on the international aspects of EIA in The Netherlands and has organized talks on the bilateral agreements with Germany and Belgium. Without her stimulating comments this article would not have existed. The partners in these talks are thanked, especially Mr. Eckart Meyer-Rutz (Bonn), Mr. T. Schro¨der (Hannover), Mr. Lindemann (Dusseldorf), and Mr. J. de Mulder (Bruxelles). These discussions provided the sources for this article, the contents of which is the responsibility only of the author. The views expressed are not necessarily the opinions of the Ministry of Housing, Spatial Planning and the Environment in The Netherlands.
References Samenwerking Vlaanderen–Zuid-Nederland. 1995. Stappenschema grensoverschrijdende milieu-effectrapportage Vlaanderen–Zuid-Nederland, December 1994 (Only in Dutch: Flow chart transboundary EIA Flanders-South Netherlands). The Ministry of Housing, Spatial Planning and the Environment. 1995. Ontwerp Grensoverschrijdende milieu-effectrapportage Nederland-Bondsrepubliek Duitsland (NederSaksen en Noordrijn-Westfalen)/Entwurf Grenzu¨berschreitende UVP Bundesrepubliek Deutschland (Nieder Sachsen und Nord Rhein Westphalen) Niederlande, 1995 (Only in Dutch and German: Draft Transboundary EIA, Netherlands–Germany Lower Saxony and North Rhine Westphalia), the Hague, The Netherlands. United Nations, Economic Commission for Europe. 1994. Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, Finland, February 25, 1991. United Nations, Economic Commissions for Europe. 1996. Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context, Environmental Series No. 6, New York and Geneva, 1996. (Contains: 1: Policies and strategies promoting environmental assessments; 2: Legal and administrative aspects of the practical application of relevant provisions of the Convention; 3: Specific methodological issues of environmental impact assessment in a transboundary context; 4: Bilateral and multilateral cooperation on environmental impact assessment in a transboundary context.)
Bilateral agreements are an important element in implementing and applying the UN-ECE Convention on EIA in a transboundary context. The Convention set the framework regulating the main topics. An agreement with surrounding countries is necessary to develop standard ways of application of EIA in transboundary cases. Careful preparation avoids delays and unnecessary friction. The main elements and solutions of bilateral agreements are discussed, based on experiences in The Netherlands, Germany and Flanders (Belgium). 1999 Elsevier Science Inc.
1. Introduction Before the UN-ECE Convention on environmental impact assessment (EIA) in a transboundary context came into force, there already was some ad hoc, transboundary exchange of documents as well as involvement in decision-making. The Convention has now formalized this into rules and obligations. (UN-ECE 1997). The parties have committed themselves to prevent, reduce, and control significant negative transboundary environmental impacts (Article 2.1 of the Convention). The country of origin takes the responsibility for this in cooperation with the possibly affected country. To achieve that goal it prescribes a number of steps. The implementation and application of the convention implies organizing a process of exchange of information and comments with more participants than usual. In comparison to cases without transboundary impacts, it inAddress requests for reprints to: Jan Jaap de Boer, VROM (ipc 660), p.o. box 30945 2500GX Den Haag, The Netherlands, E-mail: [email protected] ENVIRON IMPACT ASSESS REV 1999;19:85–98 1999 Elsevier Science Inc. All rights reserved. 655 Avenue of the Americas, New York, NY 10010
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volves more authorities, public groups, and advisers. It also involves other issues such as the translation of documentation. These are not supposed to cause delays. Bilateral agreements, mentioned in Article 8 and Appendix VI of the Convention, are a way to make all this more efficient. The Netherlands has prepared draft bilateral agreements with its direct neighboring countries Germany and Belgium. This article is based on that experience and on discussions with other signatories and parties of the Convention, held at workshops in Baarn, The Netherlands (1994) and in Moldova (1997). 2. Problems Encountered Practical experience with transboundary cases show several possible or real problems, both large and small. The experiences in The Netherlands show some typical cases of projects with transboundary impacts. The first one is a large electric power plant planned for the shore of a river delta in the northern part of The Netherlands. The plant has a capacity of 1,200 MW and is fired with natural gas. It uses water from the tidal area as cooling water. The project caused hardly any comment from the local Dutch community, but several from the nearby German island of Borkum. Local residents expressed concerns about the visual impacts and air quality. These concerns were taken into account in the decision-making. The authorities have decided that consultation on the impacts was not necessary. The second case is a new railroad for containers from Rotterdam harbor to the German border. In The Netherlands, a new railroad line will be constructed up to about 1 km before the border crossing. At that point it will join the existing railroad, which has enough capacity to accommodate the new traffic. The impacts of the new railroad would be within the Dutch territory, but the extra traffic will impact the existing line into Germany. Mitigating measures seem unnecessary on the German side. The Dutch EIA was made public in Germany and comments were received. A difficult issue raised was that German authorities were asked by the German residents to mitigate the impacts of the extra use of the railroad, while at the same time these same authorities were not legally required to act on the matter. The third case is the development by two local communities on both sides of the Dutch-German border (Heerlen and Aachen) of a joint industrial area. The site lies partly in The Netherlands and partly in Germany. Although on the Dutch side the threshold for obligatory EIA was not passed, both cities have decided to make a joint EIA by combined procedures. This combining of two very different procedures is an act of balancing, but it has succeeded. Success grew from the will of both cities to cooperate and to develop this area. One result was a complete bilingual EIA documentation.
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The fourth example is a project of a storm surge barrier in the river mouth of the Ems, in northwest Germany. It will have transboundary impacts on The Netherlands and the nature reserve (bird and habitat sanctuary), the Dollart, on both sides of the border. The tidal flow and the quality of the water (saltwater–freshwater mixture of ecologically productive quality) probably are impacted. EIA documentation has been exchanged. Public participation on both sides, especially from natural protection non-governmental organizations (NGOs), is high. The consultation has started and is concentrated on the facts of the impacts, their significance, and the possibilities to mitigate. The consultation process is ongoing. The German side has accepted the conditions for mitigating the transboundary impacts. These examples show the diversity of the projects and the range of aspects to be taken into account in application of the Convention. Several problems may occur. The first is that, although experts may expect transboundary impacts, there is no exchange of information and involvement of the party that expects to be affected. Exchanges also can be very late, putting the participation of the affected party under pressure and causing delays in decision-making in the party of origin. Such a situation can occur when regional and local authorities are not aware of any obligation to the Convention. Even if they are aware, it is not certain that they know how to apply the Convention and who should be involved on the other side of the border. Another problem is: Which documents are to be exchanged and in what sequence? This can be a problem especially in the first steps prescribed by the Convention. Closely connected with the documents is the question: What should be translated? Who is responsible, and who will bear the costs? The extent of the transboundary impacts of a particular project can be uncertain. And public participation deserves special attention. The public might be even less prepared to participate than in cases without transboundary impacts. How do they know which procedure applies and to which authority they should direct their comments? Thus, application of the Convention in concrete cases needs careful attention and preparation. 3. Procedural Steps of the Convention The main goal of the Convention is the avoidance and mitigation of transboundary impacts. The approach chosen in the Convention is that the country of origin opens its EIA and decision-making procedures to the public and to the authorities on the far side of the affected border and takes their comments into account (Articles 2.6 and 4.2). The way to do this is to apply EIA and decision-making procedure as if there were no border at all, which is very simple and modern, but not yet common practice. In the past, this sort of openness is very unusual. Quite
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TABLE 1. Flow Chart of the Convention 1. Notification (articles 3.1, 3.2) ↓ 2. Confirmation of participation (article 3.3) ↓ 3. Transmittal of information (articles 3.5, 3.6) ↓ 4. Public participation (articles 3.8, 2.6) ↓ 5. Preparation of EIA documentation (article 4, App. II) ↓ 6. Distribution of the EIA documentation for the participation of the authorities and public in the affected country (article 4.2) ↓ 7. Consultation between the parties (article 5) ↓ 8. Final decision (article 6.1) ↓ 9. Transmission of final decision documents (article 6.2) ↓ 10. Post product analysis (articles 7.1, 7.2, App. V)
a number of projects in the border region—with transboundary impacts— illustrate this. The application of the Convention is shown in Table 1. Generally speaking, the steps shown in Table 1 look very much like modern EIA process connected to a decision. However, there are a few extra steps that require special attention.
Three Extra Steps The first two extra steps are notification and confirmation of participation. The third extra is consultation between the parties, the seventh step. Notification is the step after a conclusion is reached in the country of origin that there is a project with significant transboundary impact to which the Convention applies. The notification should be at the earliest possible stage. Its goal is to alert the relevant authorities and to prepare them on the next question: “Does the possibly affected country want to participate?” The content of a notification is formulated generally in Article 3.2: information on the proposed activity, available information on the transboundary impacts, the possible decision, and the time schedule for the answer. Information mentioned in Article 3.5 also may be included: information on the EIA procedure and schedules for comment, more information on the activity, and its possible transboundary impacts. The second step is the confirmation of participation. In the notification, a “reasonable” time frame for this answer should be given. There should
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be enough time to reach an informed decision that does not delay the EIA process unnecessarily. It is important that this step decides whether or not the Convention be applied. A negative answer or, even more importantly, no answer at all means that the Convention will not apply (Article 3.4). The seventh step, the consultation, is an extra element that requires attention. This step is added because the Convention is dealing with independent states. The involved states will discuss what should be done to make the transboundary impacts acceptable to the affected party. 4. Convention Steps and the EIA Procedure One way to discover how easy (or difficult) it would be to apply the Convention is to compare the steps of the flow chart of the Convention with the steps and documents available in the national EIA procedure. One soon will discover what already is in place and what needs to be added. The comparison may concentrate first on the formal steps of EIA procedure. But it also will be necessary to look into the informal, the usuallyfollowed-but-not-regulated process, to see how this could function in application of the Convention. This comparison could be done by country in isolation, but experience shows there are clearer results if it is done with the neighboring parties during preparation of a bilateral agreement. This exercise is useful in two ways. It will show how to use existing EIA procedure and process and what must be modified in transboundary cases. It will show a possibly affected country what it can expect in terms of documents, steps, and time schedule. It will clarify the EIA process, including the decision-making process. We did this comparison several times in the groups preparing the bilateral agreements, and we regularly discovered elements that led to easier solutions to problems. Each party also became much more informed about EIA and decision-making of the other party, which is a very important element in developing the application of the Convention. A situation with transboundary impacts already is sensitive and potentially problematic. Being informed of the other party’s procedures and having mutual trust lessens tensions. Countries with a unified system of EIA (unified means that for all types of projects, the same procedure applies, possibly with different authorities) certainly are in a better position here than countries with a variety in EIA procedures, because a unified system is easier to learn. The notification steps illustrate the usefulness of this comparison. The first steps of the Convention are an early warning, asking the neighboring partner to participate and asking for supplementary information. After a positive reply, this is followed by public participation before the EIA documentation is completed (Article 3.8). Systems with a formal scoping process have a clear advantage at this stage of applying the Convention. In such a case, there will be information
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on the project as basis for the scoping process. This information possibly can be of use for the notification. Only “possibly,” however, because content requirements of the notification in Article 3.2 and time limits may apply. In the scoping document, it may be necessary to mention separately the possible transboundary impacts and their perceived significance. It is most efficient when the scoping document already contains information that should be supplied after confirmation of participation (mentioned in Articles 3.5 and 3.6). Then it would be possible to proceed without delay. Still, in such cases, confirmation is necessary to ensure that both parties are applying the Convention. In countries with informal scoping, the parties easily can decide to do scoping without looking to the border. The same authorities and public and environmental NGOs on both sides of the border will be invited to participate in the scoping process. A variant on the formal and informal scoping process is where scoping is done only at request of the developer. In this case, it is advisable—in cases of possible transboundary impact—that the developer request scoping automatically. If there is no scoping process at all, then there certainly will be problems in applying the first steps of the Convention. Notification and public participation before the preparation and completion of the EIA-documentation may need to be established and enforced by new regulation. 5. Is there a Need for Harmonization? In discussions on application of the Convention, frequently the question surfaces about harmonization of the EIA systems of parties in transboundary cases. Almost everywhere there are differences in EIA systems and decision-making processes between countries. Differences are found in public participation, the content requirements of the EIA documentation (e.g., the study of alternatives), and decision-making. The differences in public participation raise the question of harmonization: should not this participation and access to it be equal to cases without transboundary impacts? The Convention does not go into this problem of harmonization directly. It approaches it by two routes. First, the Convention requires an EIA system that complies with its minimum requirements. These minimum requirements are, in principle, fulfilled in each party that has ratified the Convention. Second, the country of origin is not allowed to discriminate and give less opportunities to both public (including NGOs) and authorities across the border than to those in the country of origin. One must apply the procedure as if there were no border at all. Signals of this approach are in the Articles 2.2 and 3.1 of the Convention. Full harmonization means that both parties equilibrate their systems for cases with transboundary impacts. In my view, it will be difficult to propose to Parliament to change the EIA and decision-making regulations with this
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as the only motivation. Parliamentarians will tend to insist that the neighbor make the changes. One conclusion here is that the parties simply must accept differences in procedures and cases, except when they are a result of non-implementation of the Convention. Its minimum requirements give the basis of a common minimum regulation of the EIA procedure and the linkage with decision-making. A second conclusion is the need to inform the public and the authorities about the application of the Convention in concrete cases. It is necessary to develop extra information material, to ensure that the public and the authorities on the affected side can act in conjunction with formal procedures of the country of origin. 6. Bilateral Agreements In Article 8 the Convention mentions bilateral or multilateral agreements or other arrangements for implementation. Appendix VI gives elements for such agreements. In this text, the words “bilateral agreement” are used frequently. What does this mean? The word agreement suggests formality, signatures, and finality. Here it is used only in a very general way. It can have the form of a treaty, a formal agreement at a high level, or an exchange of letters between the national ministers of the environment or similar arrangements. It is essential that the parties concerned have discussed and agreed on a fixed way of operating in transboundary cases. To give two examples: with Germany, The Netherlands has reached a draft agreement (The Ministry of Housing, Spatial Planning and the Environment 1995) that probably will be agreed on through an exchange of letters between the national environmental ministers. When this will happen is not clear, but in the meantime, the draft agreement is being distributed to the appropriate authorities and applied in transboundary cases. With the Flanders region of Belgium there is a formal arrangement prepared and concluded by the relevant and provincial authorities on both sides (Samenwerking Vlaanderen–Zuid-Nederland, 1995). The national authorities have supported this and were involved fully in the preparation of this arrangement. Avoiding delays is one goal, but the parties should be aware that an application in a case with transboundary impacts certainly will take more time than in a case without such impacts. To make this extra time not unnecessarily long, preparation in the form of an bilateral agreement will be useful. A bilateral agreement will deal mainly with: • •
The steps or a flow chart for the EIA, The roles and responsibilities of authorities,
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• •
The contact points, and The field of application (cases and determination of significance).
Detailing the Flow Chart The steps or the flow chart of the bilateral agreement will be an elaboration of the flow chart of the Convention. This means adding details to this flow chart, for instance, describing who is sending which document to whom. To elaborate this for the notification phase: the first question is, which authority in the country of origin has the first knowledge of a project and can determine whether there are transboundary impacts to be expected? This is, for instance, the competent authority for the said type of projects in the country of origin. This authority could be chosen as the one that notifies the affected country. But to which authority in the affected country? This could be an authority at the regional level, with probably the same role for that type of project. The affected side has to organize, where necessary, the involvement in the notification and the decision-making of other relevant authorities. The Canadian Environmental Assessment Agency has prepared a interesting paper on the contents of a notification that has been accepted by the first Meeting of the Parties in Oslo this year. Publication by the UN-ECE secretariat is forthcoming. There are a number of administrative steps in this notification. The bilateral agreement could spell out these steps in great detail. To give an example, Authority A of the country of origin sends the notification to Authority B in the possible affected area. The notification consists of document X from the EIA procedure of the country of origin supplemented with information Y (which is normally absent in documents for cases without transboundary impacts). In the letter accompanying the documents X 1 Y, a timelimit of, say, 2 weeks will be given for confirmation of participation. The number of copies of that document X 1 Y and the language in which it will be sent could be specified. The agreement may detail further that the address for the notification is Authority B, Environmental Directorate, and transboundary department (name, address, telephone and tele fax numbers, E-mail). This type of detail could be added when the parties find this useful. Here, the comparison introduced earlier, of the Convention flow chart with the steps of the EIA procedure, proves its value. To discuss the previously mentioned detailing of the steps, a clear understanding by both parties of the EIA processes and decision-making of their counterparts is necessary. This exchange of information and growth of insight takes a lot of time, but it proves to be worthwhile. Dictating rules certainly is not the way to make a bilateral agreement. A party will not tell another party how to do the transboundary exchange, but the parties will to sit together and discuss and develop the basic understanding of the agreement.
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Points of Contact The definition of the point of contact is important. In the example of the notification mentioned previously Authority B in the affected country could play the role of contact point. Then B is the authority who is informed first and has responsibilities to other authorities in the affected country. This is not a minor responsibility, because it can decide on the application of the Convention. No answer on the question of participation means no application (Article 3.4). Another important role is to help Authority A in the country of origin. This help function is valuable in solving questions for the involvement of other authorities and institutions and providing the addresses and names of contact persons. For example, later in the process the public has access to the documents. This can mean that the EIA documentation must be available at town halls in the affected area. The point of contact can help to find these places, their opening times, and so on. This administration, if not prepared, can take a lot of time when red tape should not frustrate the time schedule. If the choice is made to give main responsibility for the application to the regional level (as The Netherlands did in the provinces with borders to Germany or Belgium; these are the points of contacts), then it is necessary to define when and how the national level is informed. This is because consultation must always involve the national authorities responsible for international relations. A one-page message of a transboundary case may be sufficient to inform the environmental authorities at the national level. As the case progresses to the consultation stage, full documentation usually will be necessary.
Translation Translation of documents into the language of the affected area is necessary for equal access to the documents by both the authorities and the public. The translation must be of good quality to avoid misunderstandings. The subject of translation causes problems, and the Convention has no article on this subject. It must be possible for the authorities and public to read at least the transboundary impacts that are possible in their area and the general characteristics of the project and the mitigating measures. This will imply a translation of the transboundary impact sections and any parts necessary to understand the project. A complete translation could be easier, but it may require more work and costs. It also may require extra legislation to transfer this responsibility and cost to the developer (following the polluter pays principle), depending on existing regulation. The general line is that the country of origin is responsible for translation. If this looks difficult at first sight, one should realize that the country of origin in one
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case will be the affected country in another case, and costs will tend to equal out over time.
Costs Other costs result from the public announcements in newspaper of transboundary impact projects. The general rule (the country of origin is responsible) is applicable, but one may choose a different solution stipulated in a bilateral agreement. Leaving the publications to the affected party may, however, influence the speed of the procedure. If a party wishes to maintain speed in the procedure, then it will choose to do this and not to wait until the other has time for it.
Comments of the Public Routing of the comments of the public is left open in the Convention. Following Article 3.8, transmittal of comments and objections to the competent authority in the country of origin is either direct or through the party of origin. It is therefore necessary to choose and determine the standard route. A preference for a direct transmittal will exist where avoiding delays is important. It also avoids questions as to whether the authority or point of contact in the affected country has to process (i.e., to summarize) the comments or even to decide to support them. The translation of comments is up to the public, or otherwise it is a task for the country of origin. Members of the public who want to have influence probably will translate and send copies to their authorities to get as much support as possible. Public hearings are not required in the Convention. Several EIA procedures and decision-making procedures have obligatory hearings. According to the principles of the Convention, an invitation and participation of the public and authorities of the possible affected area is obligatory. As a matter of good relations, interpretation should be provided where necessary. This is an extra reason for careful preparation and confirming participation in a hearing. Otherwise, the party of origin may incur the costs of interpreters without needing them.
Field of Application An important subject for a bilateral agreement is definition of the cases. The Convention has Appendix I, with a list of 17 activities that are covered. This is a minimum list, because Article 2.5 of the Convention states that the parties shall enter into consultation over other, unlisted activities that may have adverse transboundary impacts. In addition to these unlisted activities, there is the need to specify the vague definitions in the Appendix I (major pipeline, deforestation of large areas and so on).
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The easiest way to solve this problem is to start with the application areas of the parties. They cover and specify the requirements of the Convention, because they are also an implementation of the Convention. The next step is to discuss together the thresholds or other specifications and conclude whether they are acceptable for the expected transboundary situations. The simplest way of defining the application is to accept the field of application of EIA in the parties of the agreement, with all the differences intact. Harmonizing is possible, but usually will take much discussion and time. The next step in application of the Convention is determination of the significance of the transboundary impacts. This can be decided on a caseby-case basis. Several methodologies for the determination are presented in the report Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context (UN-ECE 1996, pp. 47– 62). A less precise, but more automatic, way is to use certain zoning. If a case is located a short distance from the border, then a transboundary impact is supposed and notification is obligatory. For larger distances, an abbreviated list may be used. This automatic way is simple, but is will result in more notifications than in a very strict application. More notifications certainly are a contribution to a good relationship between the parties, but they also generate more costs. One solution to this problem is to give as country of origin a conclusion in the notification on the significance of the transboundary impacts, then to ask the possibly affected party whether it draws the same conclusion. In this way, application of the Convention stops right there. If there is uncertainty or discussion about the conclusion, then it is better to apply the Convention. Discussion of cases and how to deal with them in bilateral agreement is time-consuming. After a few years of experiences, a more refined approach may be possible.
Making of a Bilateral Agreement Preparation of a bilateral agreement will involve parties at the national level. This is because it involves international relations with another country. The Environmental Ministry, responsible for EIA, could take the lead. In federal states, another combined approach may be necessary to handle all the different responsibilities. The involvement of the Ministry of Foreign Affairs may be useful. Later in the application, assistance from the embassy can prove valuable to verify situations and to find the relevant authorities. Regional authorities, when they have an important task in the application, may be invited to the table. This can be in a later stage or from the beginning, depending on their role and position. There is much to discover during preparation of the bilateral agreement. Detailing steps in administration clarifies what should be done by whom.
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The longer the list with details, the more it looks like a difficult and exhausting process. But the basics are simple: the application of the procedures as if there is no border. 7. Consultation Consultation is one of the most important steps of the Convention. Article 5 states that the party of origin enters into consultation with the affected party concerning, inter alia, potential transboundary impacts and the measures to reduce or eliminate these impacts. The consultation may be related to possible alternatives, including the no-action alternative and possible mitigating measures and monitoring. The list of subjects ends with any other appropriate matters relating to the project. The conclusion is that a consultation can cover every aspect of a proposed project with transboundary impacts. The concept of consultation originates from the area of international relations. It is a discussion between national states. Consultation will not necessarily end in consensus. Consultation may take the form of a negotiation, but without the obligation to reach a common solution. The Convention does not require that a consultation end with consensus. The reason for this is clear: the power of decision-making is not changed by an application of the Convention; it stays in the country of origin. But it must be remembered that the goal of the Convention is to avoid transboundary impacts or to mitigate the impacts to an acceptable level. Acceptable means that the impacts are reduced to a level acceptable by the affected country, its inhabitants, and the country of origin. Still, the decision on the project stays at the competent authority of the country of origin. That authority must take into account the result, if there is any, or the contents of the consultation along with the other comments received (Article 6.1). Consultation involves the state at the national level in the discussion. This is because it is about the relation between the national states: does the affected state accept the impact on its territory or not? The actual decision-making power is, in many cases, at the regional level, not at the national level. In many cases, the regional level will exchange documents and comments. The extra involvement of the national level requires a clear route at an early stage, at least to alert the national level that there is a case of transboundary impacts and an exchange of documents. As Article 5 states (the party of origin shall enter into consultations), the Convention supposes that there always is consultation. Practical experience suggests it is useful to include a step in a bilateral agreement, to determine whether the affected country wants a consultation or not. Maybe the possibly affected country is convinced already by the documents about the mitigation and the resulting level of impacts, and consultation is not neces-
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sary. The offer to enter consultation is then seen as the application of the obligation, following from Article 5. Consultation is the final phase of the exchange of documentation and information. It comes close to the decision-making in the party of origin. One could be frightened by it, but at the same time there probably is the reassuring feeling that environmentally bad projects are unpopular, and that next time the roles may be reversed—the country of origin becomes the affected country. 8. Further Reading on Transboundary EIA In the Environmental Series of the UN-ECE, results of several task forces and working groups on aspects of the Convention are published. Number 6 deals with transboundary EIA and publishes papers from task forces and workshops on methodological, legal, administrative, and institutional aspects of the Convention. That material is valuable in explaining the Convention and for its application. In the work program as defined by the first Meeting of the Parties in Oslo in May 1998, there is much attention on practical application. The results of the program will be published after the second meeting of the parties in the year 2000. 9. Summary The Convention on EIA in a transboundary context gives the framework for the exchange of information, comment, and consultation on cases with significant adverse transboundary impacts. It is a framework with minimum requirements for the process of involving the possibly affected area, preparation of the EIA documentation, consultation between parties, and accounting for the results in decision-making. The central theme of this cooperation is to make no distinction between the affected area at both sides of the border in the EIA and decisionmaking procedure. For efficient application, more detailed arrangements are necessary. Although an ad hoc application is possible, preparation and a common approach will have benefits. Because a project with significant transboundary impacts already is controversial, it is best to avoid extra stress and pressure. A bilateral agreement with a clear definition of the authorities, their roles and tasks, organizations of public participation, and other aspects will diminish the pressures around the application. Such an agreement must be based on a shared view of the contents of the Convention and a mutual understanding of the processes and procedures of the concerned parties. This trust will form an important success factor in the application. Making a bilateral agreement will contribute to it. Experience in application of the Convention is an important source of developing and modifying the arrangements. Mistakes are challenges for
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improvement, and experience will bring routine. It is not necessary to wait with the application until the agreement is finalized. Apply the Convention, it works. Application will improve on the basis of learning by doing. The author wishes to thank his colleague Janny Ratelband, who is working daily on the international aspects of EIA in The Netherlands and has organized talks on the bilateral agreements with Germany and Belgium. Without her stimulating comments this article would not have existed. The partners in these talks are thanked, especially Mr. Eckart Meyer-Rutz (Bonn), Mr. T. Schro¨der (Hannover), Mr. Lindemann (Dusseldorf), and Mr. J. de Mulder (Bruxelles). These discussions provided the sources for this article, the contents of which is the responsibility only of the author. The views expressed are not necessarily the opinions of the Ministry of Housing, Spatial Planning and the Environment in The Netherlands.
References Samenwerking Vlaanderen–Zuid-Nederland. 1995. Stappenschema grensoverschrijdende milieu-effectrapportage Vlaanderen–Zuid-Nederland, December 1994 (Only in Dutch: Flow chart transboundary EIA Flanders-South Netherlands). The Ministry of Housing, Spatial Planning and the Environment. 1995. Ontwerp Grensoverschrijdende milieu-effectrapportage Nederland-Bondsrepubliek Duitsland (NederSaksen en Noordrijn-Westfalen)/Entwurf Grenzu¨berschreitende UVP Bundesrepubliek Deutschland (Nieder Sachsen und Nord Rhein Westphalen) Niederlande, 1995 (Only in Dutch and German: Draft Transboundary EIA, Netherlands–Germany Lower Saxony and North Rhine Westphalia), the Hague, The Netherlands. United Nations, Economic Commission for Europe. 1994. Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, Finland, February 25, 1991. United Nations, Economic Commissions for Europe. 1996. Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context, Environmental Series No. 6, New York and Geneva, 1996. (Contains: 1: Policies and strategies promoting environmental assessments; 2: Legal and administrative aspects of the practical application of relevant provisions of the Convention; 3: Specific methodological issues of environmental impact assessment in a transboundary context; 4: Bilateral and multilateral cooperation on environmental impact assessment in a transboundary context.)