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Significance determination
FEATURES
SIGNIFICANCE DETERMINATION: A RATIONAL RECONSTRUCTION OF DECISIONS Ulf Kjellerup Institute for Environment, Technology and Society, Roskilde University
This article deals with some screening environmental impact assessments (EIAs) that have been reviewed and decided by an administrative board, the Appeal Board for Nature Protection. The practices developed by the Appeal Board show that the handling of significance in screening lacks focus, which leads to a mix of problems; namely, inconsistent argumentation and the development of practices not compliant with the usual understanding of EIA. The problems are found in project-related screening cases as well as in general screening cases. The article argues that structural barriers in Danish EIA regulations hinder the function of the EIA system in general. The article also touches upon the problems of implementing EIA into existing legal frameworks and present the view that a Board composed mainly of politicians cannot be the right body to enforce the procedural rules of the EIA-system. 1999 Elsevier Science Inc.
1. Introduction Significance of environmental impacts is used in environmental impact assessment (EIA) legislation worldwide as a criterion by which administrative actions are triggered in relation to EIA procedures. Various aspects of significance are used throughout EIA procedures, which call for an explicit understanding of the individual context and the appliance of significance herein. This article deals with decisions taken by the Danish review board (Appeal Board for Nature Protection) in screening of projects. Screening criteAddress requests for reprints to: Ulf Kjellerup, Institute for Environment, Technology and Society, Roskilde University, DK-4000 Roskilde, Denmark. E-mail: ENVIRON IMPACT ASSESS REV 1999;19:3–19 1999 Elsevier Science Inc. All rights reserved. 655 Avenue of the Americas, New York, NY 10010
0195-9255/99/$–see front matter PII S0195-9255(98)00035-3
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ria are, in most cases, intended to aid quick decisions on the referral (or not) of projects to EIA procedures. Decisions in the screening phase call for clear, easily conducted tests regarding the significance of the proposed project. The Danish authorities have chosen the view that the nature of decisions envisaged in the screening phase calls for clear and easily conducted tests regarding the “significance” of Annex-11 projects. More elaborate criteria are set up regarding Annex-21 projects, but it must be stressed that the overall impression is that of an extensive use of formal criteria in Danish EIA regulation. The term significance is used throughout the article as a synonym for the significance of environmental impacts.
1A. Need for a Differentiated Approach to “Significance Interpretation” The meaning of the term significance interpretation in the screening phase is related to a selection mechanism; this differs from the meaning of the term in the scoping phase, where it is related to the focus and balancing of the contents of the environmental impact statement (EIS). The meaning is different again in the decision phase. Ultimately, the test of significance comes in real-life conditions during the monitoring phase of the project. In each of these phases, significance is used as a specific criterion, which makes the use of the term a highly context-sensitive task in application (Cherp 1993). Significance always comprises at least two elements, which must be included in determination or interpretation of significance. On the one hand, significance comprises everything that can be measured in the strict natural scientific sense, by which it is often referred to as magnitude, duration, or extension of the measured phenomenon. On the other hand, there is a link between the natural, scientifically measurable data and the human world. This is sometimes referred to as the social dimension of environmental impacts (Jysle´n 1997), and in individual cases often is referred to as importance in EISs. The problems linked to the interpretation of significance are manyfold, because of the multi-dimensionality of the real world. In conflict resolution, which is inherent in societal decision-making and to which EIA is linked as a tool, basic significance interpretation is one of a number of tasks to be undertaken. In individual procedures where significance interpretation is undertaken, there are a number of rationales that set the agenda for discourse. These rationales, or world views, must be included in procedure if mediation between stakeholders is to occur (Checklands 1989). The ultimate purposes for which different rationales come into play very often 1 Annex-1 projects are projects that are assumed to have significant impacts on the environment and, therefore, must be obligatory assessed. Annex-2 projects are assumed to have significant impacts on the environment depending on the specific project, the receiving environment, or both, and therefore subjected to assessment on the basis of a number of general screening criteria (Table 1).
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are incompatible, and sometimes they need to be discussed separately in a playground, non-threatening setting.
1B. Administrative and Judicial Review System in Denmark— Brief Introduction Ordinary courts can exercise judicial review of administrative decisions, according to §63 of the Danish Constitution. Such reviews in the field of planning and environment are rare in Denmark, because in most cases independent Appeal Boards exercise court-like reviews of decisions taken by authorities. The model developed in Denmark has, in this respect, led to a concentration of general and specific knowledge and to understanding within these independent Appeal Boards that is very rarely seen in ordinary courts. On the other hand, it must be admitted that these Boards are no more than formally dissociated from ordinary governmental-administrative institutions. The lack of dissociation from governmental institutions limits the extent to which judicial review is carried out by the Appeal Board. The National Appeal Board for Nature Protection is constituted under parliamentary legislation, and the Board is composed of lawyers/judiciaries and politicians. The jurisdiction of the Appeal Board is limited; in conflicts that fall under the Planning Act, it may deal solely with procedural aspects. The Appeal Board has power to quash decisions taken by decentralized authorities that are exercising power according to the Planning Act. The Appeal Board is not empowered to challenge decisions taken by the Minister for Environment (who acts under the auspices of the Planning act). Decisions of the Appeal Board may be challenged by litigation in ordinary courts, according to the Danish Constitution’s §63. Decentralized authorities—counties and municipalities—are obliged to consent to decisions taken by the Appeal Board, but they are able to challenge decisions of the Appeal Board in ordinary courts. The Appeal Board does not enter into any mediating role to solve the concrete problems regarding ignorance of EIA regulations. The case law developed by the Appeal Board does, on the other hand, play a dominant role in the practice of EIA regulations in Denmark. The main reason for this dominant role is a profound lack of guidelines from the central authorities (Ministry for Energy and Environment) in Danish EIA. In this specific context, the scarcely worded and sometimes ill-reasoned case law developed by the Appeal Board reaches a status comparable to the Oracle in Delphi. 2. Case Law Developed by the Appeal Board The case law referred to in this article concerns EIA decisions according to the Planning Act, under the provisions of which more than 75% of Danish EIA cases fall. As outlined in Table 1, it is clear that the organization of EIA in Denmark is based on a regional model. The regional model can
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TABLE 1. Structure of Danish EIA Regulation on Land EIA provision on land-based projects Cover projects that are not adopted by way of a specific national act—EIA Directive article 1(5)—procedures. Planning Act (Act No. 563 of June 30, 1997) (Ministry for Energy and Environment) §6, subsection 3, no. 4 The regional plan must contain guidelines for projects that are likely to affect the environment significantly. §6, subsection 8 Guidelines adopted on the basis of §6, subsection 3, no. 4 must be accompanied by an environmental assessment of the project. Regulation 847 of September 30, 1994, Supplementary Rules to the Planning Act §3, subsection 1 Projects listed in Annex 1 are always subject to environmental assessment. The provision covers both new projects and alterations to existing projects, in cases where the alterations may have significant impacts on the environment (34 different project types are listed in Annex 1). §3, subsection 2 Projects listed in Annex 2 may have significant impacts on the environment and are subject to the rule in subsection 1, if they: • Require the adoption of a local plan or • Give rise to significant noise impacts beyond the standard values in existing regulations or • Cause emissions into air beyond the standard values in existing regulations or • Significantly affect the quality norms regarding inner waterways/lakes as adopted in existing regional plans or • Significantly affect the quality of groundwater resources. §3, subsection 3
Projects listed in Annex 2 that are located inside SPZs designated according to: 1. 2. 3. 4.
Directive (79/409/EEC Bird Protection), or Directive (92/43/EC Habitats Protection), or The Wadden Sea Agreement, or located in the vicinity of these SPZs*
and affect the interests protected in the SPZs are subject to assessment. This provision covers new projects and alterations to existing projects. * SPZ: Speciall Protected Zones. These zones are designated for the purpose of protecting wild birds and their living places and for the protection of other habitats in general. The Wadden Sea is in general protected by the agreement from exploitation.
only be surpassed if the Parliament decides to adopt a specific national act on the proposed project, which happens frequently, especially on infrastructure projects. If the Parliament is not involved in decision-making, there is no duty imposed on the Minister to undertake the EIA procedure in the Planning act, which covers nearly all land-based projects in Denmark.2 2 In spring 1988, the Municipality of Hvidovre decided to challenge this profound lack in Danish EIA regulations by suing the Appeal Board and the Ministry for negligence of the EIA Directives Articles 2(1), 3, and 8.
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The organization of the EIA regulation means that larger projects with significant impacts on the environment beyond the singular regional area is not assessed beyond these physical boundaries. The Appeal Board has rejected having competence in cases of negligence of the EIA Directive, and thus complainants are referred to ordinary Courts if they seek remedies against the lack of proper initiative at the relevant level of competence. The development of extensive practice is still forthcoming. The Appeal Board has been restricted in its action, because there still are no comprehensive guidelines on the understanding of the term significance in the screening facility or in an individual EIS. Judicial review of significance in screening is, in many cases, a question of formality or categorization of formal criteria, which ultimately leads to a selection of projects submitted to EIA procedures. The vast majority of complaints, launched against administrative decisions, concern whether a project should be submitted to EIA procedures. The Danish rule on screening3 is based on different aspects of significance establishing thresholds— mainly for Annex-1 projects—and other criteria related to the actual effects deriving from projects—mainly for Annex-2 projects.
2A. Interpretation of Significance in the Light of Project Definition Determination of how the term project differs from case to case is just as much a question linked to significance as it is a question of mechanically taking the proposed project delimitation for granted. Significance must be interpreted in light of the purpose of the rule in question. The determination of the application the term project is, concretely, a task that combines technical/engineering considerations with broader social aspects. The case law described suggests that the application of the term project is just as difficult as determining significance in any other phase of the EIA procedure. What makes this aspect of significant impacts/significance particularly difficult in the daily life of administrative officials (and subsequently the Appeal Board) is that the regulations give no, or very vague, support for interpretation of determination of how a project is defined. A too narrow application often leads to superficial handling of impacting projects, without submitting these to EIA procedures, as was intended in the regulations. The definition of the term project is not done explicitly in Danish EIA regulations, but rests in general on the definition in the EU EIA Directives Articles 1(2) and 1(3) and on the perception of project already existing in the Planning Act. The determination of which parts of a proposal constitutes a “project” in the EIA sense is not always clear. The lack of clarity in the proper handling of the project definition can lead to a blurred process regarding significance determination in the screening phase, because the delimitation of the project in question will be mixed with the question of significance in screening of the project. 3
See Table 1.
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Practice has shown that a too narrow application of the term “project” often leads to superficial handling of “impacting” projects without submitting these to EIA procedures as intended in regulations. A too wide and unfocused application of the project definition, on the other hand, leads to situations where assessment is no longer possible on the project level. I have chosen to deal with the problems as a specific category under the screening phase, because the legal aspects of the problems are concentrated on how definitions of the term “project” are used to screen out projects from EIA (Kjellerup 1995b). 2Ai. Case study—New ring road in Roskilde municipality. A Danish municipality proposed a 700-m, two-lane road as a part of a general restructuring of the road infrastructure. The proposed project was described in the plan as being composed of a 300-m new road and a 400-m existing road, which would be altered only marginally to fit the new purposes. The overall idea was to link two main traffic areas by redirecting traffic through a hitherto quiet housing area. The project also was the missing link in creating a ring road around the center of Roskilde. According to Regulation 847, Annex 1, No. 7, motorways, express roads, and roads with an estimated traffic intensity of more than 10,000 cars per 24 hours are subject to an obligatory EIA. Consultants estimated that the new section of the total project would carry about 9,600 cars per 24 hours, whereas the new road and the adjoining existing road would show an increase of up to an estimated 14,000 per 24 hours. The existing road section had an estimated traffic of 3,500 to 4,000 cars per 24 hours, before the plan was adopted. According to the test of the Local Plan, the described project was only a minor part of a total restructuring of the road structure in Roskilde. Furthermore, the text mentioned that principal layouts for the new road structure had been adopted 2 years earlier by the Municipal Council. The Municipal Council adopted the project by way of an amendment to the existing Municipality Plan and drafted a new Local Plan for the area. In the new Local Plan, the road project was described as a 700-m road, consisting of a new section of 300 m and an adjoining part of an existing road (400 m). The existing road ran through residential housing areas. The existing road section would be, according to the adopted plan, submitted to minor alterations. The Municipality did not perform any EIA procedures before the project was adopted in a Municipal Council decision. Adoption of the proposal by the Municipal Council was challenged by a group of local inhabitants, who called for an EIA procedure before the project could be implemented. The Appeal Board decision dealt with two major problems. First, the Appeal Board decided that the project should be considered a singular, individual project, disregarding that the road was a part of a total restructur-
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ing of the city’s road infrastructure. The argumentation behind this is that— although it is explicit in EU EIA Directive’s Annex 2, No. 10 that infrastructure projects should be submitted to the EIA procedure when memberstates consider impacts to be significant—Denmark had not transposed this category into national EIA regulation. Thus, an EIA procedure could not be invoked. In their decision, the Appeal Board detailed its view on the new road section and the existing road. The total road project, described in the Local Plan, was considered to be two individual projects: one was a new road, and the other was a minor change to an existing one. By applying this view, the Appeal Board made it possible to apply two different rules to the two sections of the total road project. The Danish EIA regulation always has differentiated between new projects and alterations to existing projects.4 The Appeal Board argued that estimates showed that the new road would carry approximately 9,600 cars per 24 hours, which was under regulatory thresholds. Regarding the existing road, the Appeal Board argued that because the alterations proposed for the existing road were only minor, these were negligible, despite traffic estimates showing a rise from 3,500 to 4,000 cars per 24 hours to an estimated 12,000 to 14,000 cars per 24 hours. In this case, significant impacts were interpreted with an extremely narrow focus, from which no secondary or tertiary consequences can be derived. The problems arising from the decision are, first, whether agreed EIA rationales play any role in the procedures undertaken. If EIA is about investigating and assessing impacts of proposed actions, and if impacts are not just the immediate effects of the proposed action but also broader, later consequences of the proposed action, then the decision opposes the basic EIA idea fundamentally in a number of ways. First: the question of whether the project was one project or a number of different projects. The Appeal Board decided to consider the project as two different, independent projects. The new road section was considered one project, whereas alterations to the existing road were considered another project, despite the fact that the alteration was proposed solely as part of the total project. Second: the differentiation in Danish regulation (Table 1) between existing installations and new projects are in fundamental conflict with case law of the European Court of Justice (ECJ). In the case (C-431/92 Grossrotzenburg) the ECJ has decided that a project is a project in relation to the EIA Directive regardless of whether it being implemented into existing installations or not.5 Furthermore, the General Advocate in the case (C-72/95 Kraijeveld) has a convincing argumentation regarding the determi4 See the texts of §3, subsection 1 and §3, subsection 2, where it is mentioned that the rules in subsection 1 applies to all projects—new and alterations to existing installations—whereas in subsection 2 it is mentioned that it only applies to new projects. 5 C-431/92 Commission vs. Germany, ECR-I 2189.
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nation of “project,” which, according to the General Advocate, should be interpreted in the light of the “ability to incur changes in present conditions.”6
2B. Project-Specific Criteria—Annex-1 Projects The general screening function in Danish EIA regulation is reserved for Annex-2 projects solely (see Section III), whereas screening criteria regarding Annex-1 projects are concerned with what I have chosen to call projectspecific criteria. These criteria are different from the general screening criteria, because they are, to a large extent, of a formal nature. The understanding of, for example, what hazardous or toxic means, is not obvious to most people, and the conditions under which a substance is considered hazardous and/or toxic is even more complicated. Another criterion such as “intensive pig-rearing farms” is similarly difficult to handle by most people. In these cases, the quality of the argument behind the screening decision is very important to the credibility of the application of the criteria in question. 2Bi. Tarnby shopping center case. In a decision concerning the question of whether a shopping center was of “regional importance because of its size,” the Appeal Board resolved that the criteria should be interpreted in light of the purpose of subjecting shopping centers to EIA procedures.7 The Appeal Board did set up several subcriteria in order to test the significance of the proposed shopping center, because the term “of regional importance by its size . . .” was not explained in the very brief guidelines on EIA issued by the Ministry for Environment.8 In this context, the Appeal Board argued that the criteria should address the likelihood that the size of the center and the subsequent daily trading would lead to major deviations in existing consumer behavior and to traffic flows. Furthermore, it was argued that the size and nature of the proposed shopping center would draw in citizens living outside the local area. The understanding of how much “. . . outside the local area . . .” was interpreted as “a larger area comprising several municipalities.” Finally, the Appeal Board pointed out that the proponent had intended the shopping center to pave the way for changes in the consumer behavior in a larger area. The Appeal Board decided that these considerations—and that the proposed shopping center was a significant alteration of an existing smaller shopping center—could lead to no other conclusion than that the proposed 6 General Advocate Elmer proposal for decision in Annemeersbedrijft P.K. Kraijeveld vs. Gedeputeerde van Zuid-Holland (Case C-72/95). 7 Shopping centers that, “by their size are of regional importance,” are submitted to EIA procedures according to Regulation 847, Annex 1, No. 33, cf. §3, subsection 1. 8 Guidelines on the administration of the Planning act, Guidelines of November 1996.
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shopping center was, by its size, of regional importance and thus subject to EIA procedures. This is an interesting decision, taken on a criterion that calls for wide investigations into “magnitude, duration, extension, and importance” before significance can be determined. The decision calls for investigations into foreseen/predictable consequences (deviations in traffic patterns, attracting people living outside the local area) as well as the motivations of the developer (for a change in consumer behavior in a larger area).
2C. Significance Criteria Based on Established Regulatory Standards—Hearings The interpretation of regulatory standards such as “hazardous and/or toxic waste” is an integral part of significance determination because they are widely used as selective criteria in the lists of project types that must undergo EIA procedures. In some cases, the Appeal Board bases its decisions on hearings where the relevant sectoral authority performs the concrete evaluations relevant to the criteria. The hearings are, in many cases, performed by the sectoral authority with reference to longstanding practices in the interpretation of the relevant standard. The strict competence division between the different authorities calls for a narrow approach to such evaluations. The sectoral authority performing the evaluation must stick to the questions relating to the specific competence that is sought for in hearing. If the sectoral authority exceeds discretions in hearing the likely outcome will be negligence of the statement as presented to the Appeal Board. 2Ci. Two cases on hazardous and/or toxic waste. In two cases concerning waste disposal facilities, the Appeal Board has made use of such judgments to decide whether the projects in question should be submitted to EIA procedures. In the first case, the Danish Environmental Protection Agency (EPA) assessed shredder waste, categorizing the waste as toxic and hazardous, because of heavy-metal compounds and oil-product content. The Appeal Board decided that it could not test the judgment of the EPA, as it did not feel entitled to challenge the decision of the EPA. Consequently, the Appeal Board felt that it was legally bound by the judgment.9 In the second case, the EPA ruled that harbor sludge, with an unspecified content of different heavy-metal compounds, was not toxic and hazardous in the sense of the wording in the EIA regulation. The Appeal Board decided to overrule the judgment.10 The argument of the Appeal Board was that because the Regulation on EIA does not contain a precise definition of the term toxic and hazardous 9
Egvad Recycling Centre. Appeal Board Case No. 33/650-0027. Deponeringsareal ved Lynetten, København. Appeal Board Case No. 33/101-0049.
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waste, and furthermore does not contain any threshold/limit values by which the significance could be determined, a well-argued assessment is absolutely essential. Moreover, the Appeal Board stated that because the Regulation lacked any reference to values or amounts (as a supportive element in the significance determination), the assessment should be based primarily on a categorization of toxicity and/or hazard of the substances themselves. Finally, the Appeal Board stated that it was not reluctant to overrule the judgment of the EPA. In a comment on the decision, the chairman of the Appeal Board stressed that the decision should be viewed as an application of the precautionary principle, an inherent part of the EIA system.11 He stressed that the decision was a consequence of a different view of the Appeal Board’s jurisdiction to review assessments of sectoral authorities relevant to the Appeal Boards decisions. The main difference in these views, according to the chairman, was the difference in the quality of arguments put forward by the sectoral authority in question. If the sectoral authority restricts its arguments to questions clearly within its jurisdiction, it is likely that the Appeal Board will consent to the assessment presented. (In the latter case, the EPA only made a very general assessment of the toxicity of the substances in question. Then the EPA entered into an argument in which it made an interpretation of the EIA regulation.) The main question of the two cases concerns the competences to determine significance with respect to a regulatory standard. The general conclusion is that in some cases where significance, as a decisive criteria, is not sufficiently precisely described, significance must be viewed in light of general principles of environmental law. The application of the general principles can have the effect that sectoral boundaries between authorities are neglected, which can pave the way for a true cross-sectoral approach to environmental decision-making. 2Cii. Deposition versus intermediate storage. Significance interpretation or rather misinterpretation can be unfolded in many contexts. One of the repeatedly occurring situations are the handling of problems related to the discovery of contaminated soil in Denmark. In a most of these soil cases, Danish Environmental Protection Authorities are involved in a deliberate undermining of the function of the EIA Regulation. The cases concerns the understanding of the term “deposition” in Annex I, No. 9 in the EIA Directive.12 These contaminated sites often are in need of immediate remedial action for groundwater protection reasons. The problem is that the removed soil must be handled in accordance with established standards, but the cost of cleaning and the amount of soil prohibits a systematic 11 Naturklagenævnet Orienterer nr. 71, Juni 1995, p. 2 (Appeal Board Information Bulletin, No. 71, June 1995). 12 Directive 85/337/EEC. O.J. 1985 L175/40.
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and environmentally sound solution to the problems. Very often the best solution is to leave the contaminated soil on site, preventing the pollution of additional locations. The EIA Directive as well as the Danish EIA Regulation calls for obligatory assessment of depositions of toxic and/or hazardous waste. This duty has been too difficult a task to Danish Environmental Protection Authorities to undertake, because in several cases these authorities have tried to define their way out of the problems by inventing the category “intermediate storage.” An intermediate storage have been defined by the Danish EPA as an “environmentally neutral intermediate relocation of contaminated soil.”13 The environmental neutrality is presumed to be the code word that ensures the quality of administrative handling of these cases. One could argue that if such a category as “environmentally neutral” storage of contaminated soil really existed, then there would be no need for deposition facilities because the final answer to the problems was already at hand, the alleged “environmental neutrality.” So far Danish Authorities have accepted that an intermediate storage can run for more than a 5-year period. In these cases, the interpretation of significance have become a strive of words more than a problem related to real-world conditions regarding deposition of contaminated soil. The problem to the environment imposed from such an approach is the risk that an intermediate storage is never planned for in a careful and deliberate manner with the aim of avoiding, or at least controlling, the impacts on the environment from the activity. The intentions behind the invention of the category “intermediate storage” is obviously to avoid the EIA procedure. It is needless to say that the credibility of the application of a significance test to the project category “toxic and/or hazardous waste deposition” in the proper situations suffers profoundly from the fact that central Danish Authorities are directly involved in attempts to undermine the application of the EIA Regulation and the underlying EIA Directive. The Appeal Board so far has refrained from taking a standing point in favor of imposing EIA procedures on these “intermediate storage” projects.14 The argumentation behind this standing point has been that “intermediate storage” differs from “deposition” in terminology and thus not included in the EIA regulation. 3. General Screening Criteria—Annex-2 Projects The third aspect of significant impacts/significance in the screening phase of EIA concerns the function of the screening facility in the light of reality. Do the criteria set up in the Danish Regulation 847, §3, subsection 2 make 13 Miljøstyrelsens skrivelse af 14 April 1991 vedr. midlertidig oplagring af forurenet jord pa˚ Amager Forland. (Letter from the Danish EPA regarding intermediate storage of contaminated soil on Amager Forland). 14 Appeal Board decisions in Case Nos. 33/101-0035 (Amager Forland) and 33/101-0044 (Grøften, Amager).
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it possible to deal with the practical problems in projects that might have significant impacts on the environment? Because the Regulation and the brief guidelines supporting the Regulation boast that screening on any simple project may be performed by municipal administrators in 30 minutes, the criteria to be interpreted must be extremely clear and fit any practical situation.
3A. The Local-plan Criteria One criterion for assessing the likely significance of environmental impacts of a proposed project, according to Danish Regulation 847, §3, subsection 2 (Table 1), is whether the project necessitates the adoption of a new local plan. Every square inch of Denmark is under some kind of existing plan. An altered use of the area/location that conflicts with guidelines in existing plans forces the adoption of a new plan for the relevant area/location.15 In general, it means that the implementation of EIA projects is not possible without triggering new planning procedures in accordance with Chapter 7 of the Planning Act. The strength of such a criterion is, of course, that the selection of projects subject to EIA procedures is thus linked to existing rationale and practices.16 A weakness is that the rules behind adoption and repealing of plans were not developed with this system in mind. Although many of the criteria behind the obligation to adopt a local plan are based on rationales very much like the rationale behind the screening facility in EIA procedures, these rationales are not comparable in all aspects. One of the general problems often seen in cases where the rationales of one regulatory system is implemented in another existing regulatory framework is the tendency towards a gradual colonization of the rationales of the “incoming system” from the rationales of the existing system. This trend was shown in Danish EIA functions regarding the local plan criterion see following. Furthermore, the adoption of a local plan—or any plan in Denmark—is based on the political will in the relevant decentralized body, e.g., the County Council or Municipal Council. 3Ai. Randers shopping center. In a case concerning the extension of a shopping center in a larger town, the Appeal Board decided that although the Municipal Council adopted a new local plan for the proposed project, this should not trigger EIA procedures. The proposed project is an Annex-1 project according to Regulation 847. The specific context and the argumentation supporting the Appeal Boards decision in the case makes it a useful element in interpretation of the criteria in §3, subsection 2, No. 1 in Regulation 847, although the specific context constitutes an indirect use of the screening criteria. 15 16
§11, subsection 2 and §13, subsection 1 in the Planning Act. Such procedures are regulated in Chapter 7 of the Planning Act.
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Shopping centers normally are subjected to obligatory EIA procedures in Regulation 847, if “by their size [they] are of regional importance.”17 In the case of Randers shopping center, an alteration in the layout and size of the project was reached by the adoption of a new local plan, but without triggering any EIA procedures. The new local plan was adopted, because the proposed project altered the layout of the center, compared to existing plans. The omission of EIA procedures spurred a complaint to the Appeal Board. The Appeal Board argued in their decision that it would have been possible to implement the extension of the existing center without invoking the duty to adopt a new local plan. Their rationale was that the alteration of the layout was not a major deviation compared to existing plans, and thus it would not require new plan procedures. As a consequence of this “non-triggering,” there was no need for an EIA procedure, and, consequently, the project was considered to have no significant impact on the environment. This reasoning may be criticized, because it is wrong to emphasize the question of substantial deviations in the newly adopted plan in light of the existing plan. The central question to be posed in this context is whether the new plan will lead to a project with significant impacts on the environment, regardless of the contents of an existing plan. The Randers decision is remarkable in light of the purpose of EIA—the assessment of actual changes that might occur as a consequence of implementation of a proposed project—and not a question of whether the adoption of a new plan represents any substantial deviation from the existing plan. Fundamentally, the decision calls for reconsideration of the screening criteria that trigger plan procedures. The planning system is based on securing coordinated, structured development, with special emphasis on the coordination of functions in the real world as well as in the symbolic world of plans. The mixing of these “two worlds of rationality” cannot take place without considering which of the two worlds must be given primacy. In other words, one must consider whether screening is performed within the rational frames of the EIA system and, thus, intended as a preliminary test of whether the likely impacts will be significant in the environment, or, conversely, whether the test’s purpose is determining if new plan procedures must be undertaken. If the rationale of the EIA system is given primacy, then the answer must be concerned with the predictable impacts of the proposed projects and its significance, not just with the likelihood that the project can be located within the framework of an existing plan. (The decision in the Randers case can lead to intensified traffic, where Annex-2 projects are dealt with in a two-step phase. The first step is to 17
Regulation 847, Annex 1, No. 33, cf. §3, subsection 1.
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adopt a new local plan, which makes it possible to establish a project subjected to EIA within the planned area, but without any concrete plans to do so. The second phase give consent to a concrete project without triggering EIA procedures, because it is not in conflict with guidelines expressed in the now existing plan. Jurisdiction to adopt local plans with such content is not restricted on these grounds). In light of the Randers decision, it seems that the criteria used for subjecting projects to EIA procedures are strictly formal, they do not lead to an initial assessment, based on the likelihood that significant impacts will result from the proposed project. 3Aii. Kyndby landfill site. Landfill depositions of household and industrial waste are subject to screening according to the Danish EIA Regulation.18 Since the County of Frederiksborg in 1989 adopted guidelines in the regional plan for the location of a deposition-installation for industrial and household waste in Kyndby, the project has been an object of public controversy. The adoption of the regional guidelines was not based on any screening regarding the likely significant impacts on the environment. The reason was that the Danish implementation of the EIA Directive did not include Annex-2 projects of the EU EIA Directive until October 1994. The Municipality subsequently adopted guidelines in the Municipality plan on the location of the deposition. During the public hearing period of the renewed regional plan for Frederiksborg in 1997, the Municipality became aware that the project should have been screened in accordance with Danish EIA Regulations. Under normal circumstances, a municipality is obliged to adopt the necessary local plan when an area has been designated for public purposes in planning documents. This rule is intended to protect private land-owners from long-time standing reservation on their land with the subsequent insecurity linked to such passive obligations. Public landuse reservations often are decided as long-term commitments. Until now, the Municipality has hesitated to adopt the local plan, mainly because the environmental impacts of the proposed project have not been investigated. The Municipality launched a complaint against the adoption of the Regional plan to the Appeal Board.19 It argued that the guidelines in the Regional plan was in conflict with the duty to submit EIA projects to an environmental assessment before adoption into the plan. The Municipality furthermore argued that if it adopted the required local plan, which already had been imposed on the Municipality as a duty, then the proposed project would automatically bypass the EIA Regulations §3, subsection 2 criteria on local plans. 18
Regulation 847, §3, subsection 2, cf. Annex 2, No. 8.c. Jægerspris Kommunes skrivelse af 31. Marts 1998 (Complaint from Jægerspris Municipality of 31. March 1998). 19
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The Appeal Board decided to sustain the decision in the Regional plan and emphasized that the municipality was obliged to adopt the local plan by reference to the interests of the private land-owner.20 The Appeal Board stated that the reservation of the deposition-location was not a concrete project but a long-term commitment imposed on the County according to other statutory rules in the Planning act than the EIA Regulation. The decision shows that the local-plan criteria for screening purposes does not live up to the intention behind the criteria. The fact is that if the municipality adopts the required local plan, it will be obliged to acquire the land from the land owner. The consequence will be that the implementation of the deposition need no further planning. The procedures to come will consequently focus only on the conditions of construction and operation of the project. 3Aiii. Artificial peninsula at the Oeresund bridge. The case concerns a deposition of what was determined by sectoral authority to be lightly contaminated soil from the construction works of the Oeresund bridge (the bridge between Denmark and Sweden). Greenpeace complained that the deposition of more than 150 kilotons of contaminated soil with a mixture of heavy metals and organic compounds was a deposition of toxic and/or hazardous waste or a deposition that could be referred to under Annex 2, No. 8c in the EIA Regulation (this category corresponds to Annex 2 of the EU EIA Directive). The Danish EPA made an evaluation of the soil contents and stated on the basis of four categories—danger to health, environment, epidemic hazards, and inflammability risks—that the soil could not be categorized as toxic and/or hazardous. The Appeal Board supported this categorization, although Greenpeace emphasized that the threshold values used by the EPA for the categorization were not similar to those imposed on county and municipal administrations performing the same evaluations. The question concerning the deposition in relation to the Annex-2 requirement was argued by Greenpeace by reference to non-existence of a local plan for the deposition area, thus, an environmental assessment was required (I shall not address the question of whether the deposition of soil from the bridge project should have been included in the environmental statement of the bridge project if adopted under Article 1(5) in the EU EIA Directive).21 The Appeal Board denied that the local-plan criteria were relevant, because the site in which the deposition was intended for implementation was under the regulation of a specific national act adopted with the purpose of realizing the Oeresund bridge in accordance with Article 20 Naturklagenævnets afgørelse af 28. April 1998 (Appeal Board Decision of 28. April 1998) sag.nr./case no. 97-33/200-0147. 21 This question is one of several questions subject to litigation between Greenpeace and the Danish Government in the Danish Supreme Court.
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1(5) of the EIA Directive.22 The Ministry for Transportation, which is responsible for the specific national act, did, during the hearing before the Appeal Boards decision, state that there was a general prohibition against deposition of any toxic or hazardous substances on the site. The decision is another example of how significance is handled in the formal domain rather than under real-world conditions. If the existing guidelines as decided by the Ministry for Transportation on the site contained a general prohibition against toxic and/or hazardous substances, then the rationales behind the local-plan criteria are triggered, namely, that the existing planning-designation of the area in question is not intended for waste deposition. 4. Concluding Remarks The case law described shows that the Danish EIA system lacks a focused approach to significance interpretation. The lack of focus is seen in the mixing of project definition/delimitation with the screening of projects. The lack of focus also is seen in the way the handling of significance is ambiguous from case to case, even when the content of the significance interpretation concerns the same criteria. The failure to include different dimensions of significance in the proper context also led to clearly biased decisions that bypass the fundamental function of the EIA regulation, namely, the purpose of avoiding the occurrence of environmental impacts by carefully performed planning and design of the project in question. Instead, the procedures frequently are used to defend the existing planning system and the way environmental problems usually are handled. It is one of the probable outcomes of integrating EIA into existing legal frameworks, without paying attention to the clash between different rationales behind each of the frameworks that are integrated. The composition of the Appeal Board also points at a fundamental misunderstanding regarding the nature of EIA. Although EIA is a decisionmaking procedure, it is first of all a procedure composed of formal phases. In each, formal requirements must be met. The formality of the EU EIA system cannot be conformed to the informality of the existing Danish planning regulation. Nevertheless, the implementation of the EIA system into the planning regulation obviously includes very sloppy enforcement of the legal requirements supporting the EU EIA system. Planning has always been perceived as a highly political discipline in Denmark, which is mirrored in the composition of the Appeal Board. But negligence of EIA requirements certainly is not a political question. The very brief, and 22 The question of the relationship between the specific national act and the adoption of the decision to implement the deposition also was investigated by the Appeal Board. According to the Appeal Board, the deposition was not regulated by the specific national act. Appeal Board Decision No. 33/150-0272).
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in certain cases very badly argued, decisions taken by the Board show that there are some profound misunderstandings regarding the nature of EIA and the subsequent demand for enforcement of these requirements in Denmark. The result of my investigation into a very small corner of the overall Danish EIA performance is discouraging. The fact is that Danish EIA regulations, despite being enacted in 1988, still lack fundamental support in understanding and handling the different stages of EIA procedures. In this context, it may seem hard to launch severe criticism towards the Appeal Board, because it is obviously very restricted in its actions. Nevertheless, I have chosen to sustain my criticism towards the practices of the Appeal Board, because the Board seems to be the only authority in a position to alter the overall picture. The ordinary Danish Courts are, in general, very reluctant to take initiatives towards any negligence from public authorities. Just at the time of printing, the Danish High Court decided to sustain the decision of the Appeal Board in the ring road case from Roskilde (see Section 2Ai). Danish EIA has a long way to go. References Basse, E.M. 1996. VVM i Danmark (EIA in Denmark). In Miljøkonsekvensvurderinger—i et retligt perspektiv (EIA—in a Legal Perspective), E.M. Basse (ed). Copenhagen: CadJura. Checklands, P. 1989. Soft systems methodology. In Rational Analysis for a Problematic World, J. Rosenhead (ed). New York: John Wiley and Sons. Cherp, O. 1993. Significance. Masters Thesis, University of Manchester, England. Jysle´n, J. 1997. Social impact assessment. Nordic Newsletter on EIA, No. 6, Roskilde University. Kjellerup, U. 1994. Legalitet og/eller legitimitet (Legality and/or legitimacy), kronik i dagbladet Information 16. (Essay in the Paper Information, August 1994). Kjellerup, U. 1995a. Miljøministeren den eneste at klandre (The minister the only one to blame..), kronik i dagbladet Information 24. (Essay in the Paper Information, March 1995). Kjellerup, U. 1995b. Projektbegrebet i VVM-direktivet (The term “project” in the EIA-Directive). In Norden og EU-Diretivet om Konsekvensutredninger (The Nordic Countries and the EIA-Directive). Nordic Council for Ministers, TemaNord, Copenhagen. Kjellerup, U. 1996. The Oeresund-litigation. In Environmental Rights—Law, Litigation and Access to Justice, B. Geters (ed). London: Cameron/May.
SIGNIFICANCE DETERMINATION: A RATIONAL RECONSTRUCTION OF DECISIONS Ulf Kjellerup Institute for Environment, Technology and Society, Roskilde University
This article deals with some screening environmental impact assessments (EIAs) that have been reviewed and decided by an administrative board, the Appeal Board for Nature Protection. The practices developed by the Appeal Board show that the handling of significance in screening lacks focus, which leads to a mix of problems; namely, inconsistent argumentation and the development of practices not compliant with the usual understanding of EIA. The problems are found in project-related screening cases as well as in general screening cases. The article argues that structural barriers in Danish EIA regulations hinder the function of the EIA system in general. The article also touches upon the problems of implementing EIA into existing legal frameworks and present the view that a Board composed mainly of politicians cannot be the right body to enforce the procedural rules of the EIA-system. 1999 Elsevier Science Inc.
1. Introduction Significance of environmental impacts is used in environmental impact assessment (EIA) legislation worldwide as a criterion by which administrative actions are triggered in relation to EIA procedures. Various aspects of significance are used throughout EIA procedures, which call for an explicit understanding of the individual context and the appliance of significance herein. This article deals with decisions taken by the Danish review board (Appeal Board for Nature Protection) in screening of projects. Screening criteAddress requests for reprints to: Ulf Kjellerup, Institute for Environment, Technology and Society, Roskilde University, DK-4000 Roskilde, Denmark. E-mail:
0195-9255/99/$–see front matter PII S0195-9255(98)00035-3
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ria are, in most cases, intended to aid quick decisions on the referral (or not) of projects to EIA procedures. Decisions in the screening phase call for clear, easily conducted tests regarding the significance of the proposed project. The Danish authorities have chosen the view that the nature of decisions envisaged in the screening phase calls for clear and easily conducted tests regarding the “significance” of Annex-11 projects. More elaborate criteria are set up regarding Annex-21 projects, but it must be stressed that the overall impression is that of an extensive use of formal criteria in Danish EIA regulation. The term significance is used throughout the article as a synonym for the significance of environmental impacts.
1A. Need for a Differentiated Approach to “Significance Interpretation” The meaning of the term significance interpretation in the screening phase is related to a selection mechanism; this differs from the meaning of the term in the scoping phase, where it is related to the focus and balancing of the contents of the environmental impact statement (EIS). The meaning is different again in the decision phase. Ultimately, the test of significance comes in real-life conditions during the monitoring phase of the project. In each of these phases, significance is used as a specific criterion, which makes the use of the term a highly context-sensitive task in application (Cherp 1993). Significance always comprises at least two elements, which must be included in determination or interpretation of significance. On the one hand, significance comprises everything that can be measured in the strict natural scientific sense, by which it is often referred to as magnitude, duration, or extension of the measured phenomenon. On the other hand, there is a link between the natural, scientifically measurable data and the human world. This is sometimes referred to as the social dimension of environmental impacts (Jysle´n 1997), and in individual cases often is referred to as importance in EISs. The problems linked to the interpretation of significance are manyfold, because of the multi-dimensionality of the real world. In conflict resolution, which is inherent in societal decision-making and to which EIA is linked as a tool, basic significance interpretation is one of a number of tasks to be undertaken. In individual procedures where significance interpretation is undertaken, there are a number of rationales that set the agenda for discourse. These rationales, or world views, must be included in procedure if mediation between stakeholders is to occur (Checklands 1989). The ultimate purposes for which different rationales come into play very often 1 Annex-1 projects are projects that are assumed to have significant impacts on the environment and, therefore, must be obligatory assessed. Annex-2 projects are assumed to have significant impacts on the environment depending on the specific project, the receiving environment, or both, and therefore subjected to assessment on the basis of a number of general screening criteria (Table 1).
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are incompatible, and sometimes they need to be discussed separately in a playground, non-threatening setting.
1B. Administrative and Judicial Review System in Denmark— Brief Introduction Ordinary courts can exercise judicial review of administrative decisions, according to §63 of the Danish Constitution. Such reviews in the field of planning and environment are rare in Denmark, because in most cases independent Appeal Boards exercise court-like reviews of decisions taken by authorities. The model developed in Denmark has, in this respect, led to a concentration of general and specific knowledge and to understanding within these independent Appeal Boards that is very rarely seen in ordinary courts. On the other hand, it must be admitted that these Boards are no more than formally dissociated from ordinary governmental-administrative institutions. The lack of dissociation from governmental institutions limits the extent to which judicial review is carried out by the Appeal Board. The National Appeal Board for Nature Protection is constituted under parliamentary legislation, and the Board is composed of lawyers/judiciaries and politicians. The jurisdiction of the Appeal Board is limited; in conflicts that fall under the Planning Act, it may deal solely with procedural aspects. The Appeal Board has power to quash decisions taken by decentralized authorities that are exercising power according to the Planning Act. The Appeal Board is not empowered to challenge decisions taken by the Minister for Environment (who acts under the auspices of the Planning act). Decisions of the Appeal Board may be challenged by litigation in ordinary courts, according to the Danish Constitution’s §63. Decentralized authorities—counties and municipalities—are obliged to consent to decisions taken by the Appeal Board, but they are able to challenge decisions of the Appeal Board in ordinary courts. The Appeal Board does not enter into any mediating role to solve the concrete problems regarding ignorance of EIA regulations. The case law developed by the Appeal Board does, on the other hand, play a dominant role in the practice of EIA regulations in Denmark. The main reason for this dominant role is a profound lack of guidelines from the central authorities (Ministry for Energy and Environment) in Danish EIA. In this specific context, the scarcely worded and sometimes ill-reasoned case law developed by the Appeal Board reaches a status comparable to the Oracle in Delphi. 2. Case Law Developed by the Appeal Board The case law referred to in this article concerns EIA decisions according to the Planning Act, under the provisions of which more than 75% of Danish EIA cases fall. As outlined in Table 1, it is clear that the organization of EIA in Denmark is based on a regional model. The regional model can
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TABLE 1. Structure of Danish EIA Regulation on Land EIA provision on land-based projects Cover projects that are not adopted by way of a specific national act—EIA Directive article 1(5)—procedures. Planning Act (Act No. 563 of June 30, 1997) (Ministry for Energy and Environment) §6, subsection 3, no. 4 The regional plan must contain guidelines for projects that are likely to affect the environment significantly. §6, subsection 8 Guidelines adopted on the basis of §6, subsection 3, no. 4 must be accompanied by an environmental assessment of the project. Regulation 847 of September 30, 1994, Supplementary Rules to the Planning Act §3, subsection 1 Projects listed in Annex 1 are always subject to environmental assessment. The provision covers both new projects and alterations to existing projects, in cases where the alterations may have significant impacts on the environment (34 different project types are listed in Annex 1). §3, subsection 2 Projects listed in Annex 2 may have significant impacts on the environment and are subject to the rule in subsection 1, if they: • Require the adoption of a local plan or • Give rise to significant noise impacts beyond the standard values in existing regulations or • Cause emissions into air beyond the standard values in existing regulations or • Significantly affect the quality norms regarding inner waterways/lakes as adopted in existing regional plans or • Significantly affect the quality of groundwater resources. §3, subsection 3
Projects listed in Annex 2 that are located inside SPZs designated according to: 1. 2. 3. 4.
Directive (79/409/EEC Bird Protection), or Directive (92/43/EC Habitats Protection), or The Wadden Sea Agreement, or located in the vicinity of these SPZs*
and affect the interests protected in the SPZs are subject to assessment. This provision covers new projects and alterations to existing projects. * SPZ: Speciall Protected Zones. These zones are designated for the purpose of protecting wild birds and their living places and for the protection of other habitats in general. The Wadden Sea is in general protected by the agreement from exploitation.
only be surpassed if the Parliament decides to adopt a specific national act on the proposed project, which happens frequently, especially on infrastructure projects. If the Parliament is not involved in decision-making, there is no duty imposed on the Minister to undertake the EIA procedure in the Planning act, which covers nearly all land-based projects in Denmark.2 2 In spring 1988, the Municipality of Hvidovre decided to challenge this profound lack in Danish EIA regulations by suing the Appeal Board and the Ministry for negligence of the EIA Directives Articles 2(1), 3, and 8.
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The organization of the EIA regulation means that larger projects with significant impacts on the environment beyond the singular regional area is not assessed beyond these physical boundaries. The Appeal Board has rejected having competence in cases of negligence of the EIA Directive, and thus complainants are referred to ordinary Courts if they seek remedies against the lack of proper initiative at the relevant level of competence. The development of extensive practice is still forthcoming. The Appeal Board has been restricted in its action, because there still are no comprehensive guidelines on the understanding of the term significance in the screening facility or in an individual EIS. Judicial review of significance in screening is, in many cases, a question of formality or categorization of formal criteria, which ultimately leads to a selection of projects submitted to EIA procedures. The vast majority of complaints, launched against administrative decisions, concern whether a project should be submitted to EIA procedures. The Danish rule on screening3 is based on different aspects of significance establishing thresholds— mainly for Annex-1 projects—and other criteria related to the actual effects deriving from projects—mainly for Annex-2 projects.
2A. Interpretation of Significance in the Light of Project Definition Determination of how the term project differs from case to case is just as much a question linked to significance as it is a question of mechanically taking the proposed project delimitation for granted. Significance must be interpreted in light of the purpose of the rule in question. The determination of the application the term project is, concretely, a task that combines technical/engineering considerations with broader social aspects. The case law described suggests that the application of the term project is just as difficult as determining significance in any other phase of the EIA procedure. What makes this aspect of significant impacts/significance particularly difficult in the daily life of administrative officials (and subsequently the Appeal Board) is that the regulations give no, or very vague, support for interpretation of determination of how a project is defined. A too narrow application often leads to superficial handling of impacting projects, without submitting these to EIA procedures, as was intended in the regulations. The definition of the term project is not done explicitly in Danish EIA regulations, but rests in general on the definition in the EU EIA Directives Articles 1(2) and 1(3) and on the perception of project already existing in the Planning Act. The determination of which parts of a proposal constitutes a “project” in the EIA sense is not always clear. The lack of clarity in the proper handling of the project definition can lead to a blurred process regarding significance determination in the screening phase, because the delimitation of the project in question will be mixed with the question of significance in screening of the project. 3
See Table 1.
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Practice has shown that a too narrow application of the term “project” often leads to superficial handling of “impacting” projects without submitting these to EIA procedures as intended in regulations. A too wide and unfocused application of the project definition, on the other hand, leads to situations where assessment is no longer possible on the project level. I have chosen to deal with the problems as a specific category under the screening phase, because the legal aspects of the problems are concentrated on how definitions of the term “project” are used to screen out projects from EIA (Kjellerup 1995b). 2Ai. Case study—New ring road in Roskilde municipality. A Danish municipality proposed a 700-m, two-lane road as a part of a general restructuring of the road infrastructure. The proposed project was described in the plan as being composed of a 300-m new road and a 400-m existing road, which would be altered only marginally to fit the new purposes. The overall idea was to link two main traffic areas by redirecting traffic through a hitherto quiet housing area. The project also was the missing link in creating a ring road around the center of Roskilde. According to Regulation 847, Annex 1, No. 7, motorways, express roads, and roads with an estimated traffic intensity of more than 10,000 cars per 24 hours are subject to an obligatory EIA. Consultants estimated that the new section of the total project would carry about 9,600 cars per 24 hours, whereas the new road and the adjoining existing road would show an increase of up to an estimated 14,000 per 24 hours. The existing road section had an estimated traffic of 3,500 to 4,000 cars per 24 hours, before the plan was adopted. According to the test of the Local Plan, the described project was only a minor part of a total restructuring of the road structure in Roskilde. Furthermore, the text mentioned that principal layouts for the new road structure had been adopted 2 years earlier by the Municipal Council. The Municipal Council adopted the project by way of an amendment to the existing Municipality Plan and drafted a new Local Plan for the area. In the new Local Plan, the road project was described as a 700-m road, consisting of a new section of 300 m and an adjoining part of an existing road (400 m). The existing road ran through residential housing areas. The existing road section would be, according to the adopted plan, submitted to minor alterations. The Municipality did not perform any EIA procedures before the project was adopted in a Municipal Council decision. Adoption of the proposal by the Municipal Council was challenged by a group of local inhabitants, who called for an EIA procedure before the project could be implemented. The Appeal Board decision dealt with two major problems. First, the Appeal Board decided that the project should be considered a singular, individual project, disregarding that the road was a part of a total restructur-
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ing of the city’s road infrastructure. The argumentation behind this is that— although it is explicit in EU EIA Directive’s Annex 2, No. 10 that infrastructure projects should be submitted to the EIA procedure when memberstates consider impacts to be significant—Denmark had not transposed this category into national EIA regulation. Thus, an EIA procedure could not be invoked. In their decision, the Appeal Board detailed its view on the new road section and the existing road. The total road project, described in the Local Plan, was considered to be two individual projects: one was a new road, and the other was a minor change to an existing one. By applying this view, the Appeal Board made it possible to apply two different rules to the two sections of the total road project. The Danish EIA regulation always has differentiated between new projects and alterations to existing projects.4 The Appeal Board argued that estimates showed that the new road would carry approximately 9,600 cars per 24 hours, which was under regulatory thresholds. Regarding the existing road, the Appeal Board argued that because the alterations proposed for the existing road were only minor, these were negligible, despite traffic estimates showing a rise from 3,500 to 4,000 cars per 24 hours to an estimated 12,000 to 14,000 cars per 24 hours. In this case, significant impacts were interpreted with an extremely narrow focus, from which no secondary or tertiary consequences can be derived. The problems arising from the decision are, first, whether agreed EIA rationales play any role in the procedures undertaken. If EIA is about investigating and assessing impacts of proposed actions, and if impacts are not just the immediate effects of the proposed action but also broader, later consequences of the proposed action, then the decision opposes the basic EIA idea fundamentally in a number of ways. First: the question of whether the project was one project or a number of different projects. The Appeal Board decided to consider the project as two different, independent projects. The new road section was considered one project, whereas alterations to the existing road were considered another project, despite the fact that the alteration was proposed solely as part of the total project. Second: the differentiation in Danish regulation (Table 1) between existing installations and new projects are in fundamental conflict with case law of the European Court of Justice (ECJ). In the case (C-431/92 Grossrotzenburg) the ECJ has decided that a project is a project in relation to the EIA Directive regardless of whether it being implemented into existing installations or not.5 Furthermore, the General Advocate in the case (C-72/95 Kraijeveld) has a convincing argumentation regarding the determi4 See the texts of §3, subsection 1 and §3, subsection 2, where it is mentioned that the rules in subsection 1 applies to all projects—new and alterations to existing installations—whereas in subsection 2 it is mentioned that it only applies to new projects. 5 C-431/92 Commission vs. Germany, ECR-I 2189.
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nation of “project,” which, according to the General Advocate, should be interpreted in the light of the “ability to incur changes in present conditions.”6
2B. Project-Specific Criteria—Annex-1 Projects The general screening function in Danish EIA regulation is reserved for Annex-2 projects solely (see Section III), whereas screening criteria regarding Annex-1 projects are concerned with what I have chosen to call projectspecific criteria. These criteria are different from the general screening criteria, because they are, to a large extent, of a formal nature. The understanding of, for example, what hazardous or toxic means, is not obvious to most people, and the conditions under which a substance is considered hazardous and/or toxic is even more complicated. Another criterion such as “intensive pig-rearing farms” is similarly difficult to handle by most people. In these cases, the quality of the argument behind the screening decision is very important to the credibility of the application of the criteria in question. 2Bi. Tarnby shopping center case. In a decision concerning the question of whether a shopping center was of “regional importance because of its size,” the Appeal Board resolved that the criteria should be interpreted in light of the purpose of subjecting shopping centers to EIA procedures.7 The Appeal Board did set up several subcriteria in order to test the significance of the proposed shopping center, because the term “of regional importance by its size . . .” was not explained in the very brief guidelines on EIA issued by the Ministry for Environment.8 In this context, the Appeal Board argued that the criteria should address the likelihood that the size of the center and the subsequent daily trading would lead to major deviations in existing consumer behavior and to traffic flows. Furthermore, it was argued that the size and nature of the proposed shopping center would draw in citizens living outside the local area. The understanding of how much “. . . outside the local area . . .” was interpreted as “a larger area comprising several municipalities.” Finally, the Appeal Board pointed out that the proponent had intended the shopping center to pave the way for changes in the consumer behavior in a larger area. The Appeal Board decided that these considerations—and that the proposed shopping center was a significant alteration of an existing smaller shopping center—could lead to no other conclusion than that the proposed 6 General Advocate Elmer proposal for decision in Annemeersbedrijft P.K. Kraijeveld vs. Gedeputeerde van Zuid-Holland (Case C-72/95). 7 Shopping centers that, “by their size are of regional importance,” are submitted to EIA procedures according to Regulation 847, Annex 1, No. 33, cf. §3, subsection 1. 8 Guidelines on the administration of the Planning act, Guidelines of November 1996.
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shopping center was, by its size, of regional importance and thus subject to EIA procedures. This is an interesting decision, taken on a criterion that calls for wide investigations into “magnitude, duration, extension, and importance” before significance can be determined. The decision calls for investigations into foreseen/predictable consequences (deviations in traffic patterns, attracting people living outside the local area) as well as the motivations of the developer (for a change in consumer behavior in a larger area).
2C. Significance Criteria Based on Established Regulatory Standards—Hearings The interpretation of regulatory standards such as “hazardous and/or toxic waste” is an integral part of significance determination because they are widely used as selective criteria in the lists of project types that must undergo EIA procedures. In some cases, the Appeal Board bases its decisions on hearings where the relevant sectoral authority performs the concrete evaluations relevant to the criteria. The hearings are, in many cases, performed by the sectoral authority with reference to longstanding practices in the interpretation of the relevant standard. The strict competence division between the different authorities calls for a narrow approach to such evaluations. The sectoral authority performing the evaluation must stick to the questions relating to the specific competence that is sought for in hearing. If the sectoral authority exceeds discretions in hearing the likely outcome will be negligence of the statement as presented to the Appeal Board. 2Ci. Two cases on hazardous and/or toxic waste. In two cases concerning waste disposal facilities, the Appeal Board has made use of such judgments to decide whether the projects in question should be submitted to EIA procedures. In the first case, the Danish Environmental Protection Agency (EPA) assessed shredder waste, categorizing the waste as toxic and hazardous, because of heavy-metal compounds and oil-product content. The Appeal Board decided that it could not test the judgment of the EPA, as it did not feel entitled to challenge the decision of the EPA. Consequently, the Appeal Board felt that it was legally bound by the judgment.9 In the second case, the EPA ruled that harbor sludge, with an unspecified content of different heavy-metal compounds, was not toxic and hazardous in the sense of the wording in the EIA regulation. The Appeal Board decided to overrule the judgment.10 The argument of the Appeal Board was that because the Regulation on EIA does not contain a precise definition of the term toxic and hazardous 9
Egvad Recycling Centre. Appeal Board Case No. 33/650-0027. Deponeringsareal ved Lynetten, København. Appeal Board Case No. 33/101-0049.
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waste, and furthermore does not contain any threshold/limit values by which the significance could be determined, a well-argued assessment is absolutely essential. Moreover, the Appeal Board stated that because the Regulation lacked any reference to values or amounts (as a supportive element in the significance determination), the assessment should be based primarily on a categorization of toxicity and/or hazard of the substances themselves. Finally, the Appeal Board stated that it was not reluctant to overrule the judgment of the EPA. In a comment on the decision, the chairman of the Appeal Board stressed that the decision should be viewed as an application of the precautionary principle, an inherent part of the EIA system.11 He stressed that the decision was a consequence of a different view of the Appeal Board’s jurisdiction to review assessments of sectoral authorities relevant to the Appeal Boards decisions. The main difference in these views, according to the chairman, was the difference in the quality of arguments put forward by the sectoral authority in question. If the sectoral authority restricts its arguments to questions clearly within its jurisdiction, it is likely that the Appeal Board will consent to the assessment presented. (In the latter case, the EPA only made a very general assessment of the toxicity of the substances in question. Then the EPA entered into an argument in which it made an interpretation of the EIA regulation.) The main question of the two cases concerns the competences to determine significance with respect to a regulatory standard. The general conclusion is that in some cases where significance, as a decisive criteria, is not sufficiently precisely described, significance must be viewed in light of general principles of environmental law. The application of the general principles can have the effect that sectoral boundaries between authorities are neglected, which can pave the way for a true cross-sectoral approach to environmental decision-making. 2Cii. Deposition versus intermediate storage. Significance interpretation or rather misinterpretation can be unfolded in many contexts. One of the repeatedly occurring situations are the handling of problems related to the discovery of contaminated soil in Denmark. In a most of these soil cases, Danish Environmental Protection Authorities are involved in a deliberate undermining of the function of the EIA Regulation. The cases concerns the understanding of the term “deposition” in Annex I, No. 9 in the EIA Directive.12 These contaminated sites often are in need of immediate remedial action for groundwater protection reasons. The problem is that the removed soil must be handled in accordance with established standards, but the cost of cleaning and the amount of soil prohibits a systematic 11 Naturklagenævnet Orienterer nr. 71, Juni 1995, p. 2 (Appeal Board Information Bulletin, No. 71, June 1995). 12 Directive 85/337/EEC. O.J. 1985 L175/40.
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and environmentally sound solution to the problems. Very often the best solution is to leave the contaminated soil on site, preventing the pollution of additional locations. The EIA Directive as well as the Danish EIA Regulation calls for obligatory assessment of depositions of toxic and/or hazardous waste. This duty has been too difficult a task to Danish Environmental Protection Authorities to undertake, because in several cases these authorities have tried to define their way out of the problems by inventing the category “intermediate storage.” An intermediate storage have been defined by the Danish EPA as an “environmentally neutral intermediate relocation of contaminated soil.”13 The environmental neutrality is presumed to be the code word that ensures the quality of administrative handling of these cases. One could argue that if such a category as “environmentally neutral” storage of contaminated soil really existed, then there would be no need for deposition facilities because the final answer to the problems was already at hand, the alleged “environmental neutrality.” So far Danish Authorities have accepted that an intermediate storage can run for more than a 5-year period. In these cases, the interpretation of significance have become a strive of words more than a problem related to real-world conditions regarding deposition of contaminated soil. The problem to the environment imposed from such an approach is the risk that an intermediate storage is never planned for in a careful and deliberate manner with the aim of avoiding, or at least controlling, the impacts on the environment from the activity. The intentions behind the invention of the category “intermediate storage” is obviously to avoid the EIA procedure. It is needless to say that the credibility of the application of a significance test to the project category “toxic and/or hazardous waste deposition” in the proper situations suffers profoundly from the fact that central Danish Authorities are directly involved in attempts to undermine the application of the EIA Regulation and the underlying EIA Directive. The Appeal Board so far has refrained from taking a standing point in favor of imposing EIA procedures on these “intermediate storage” projects.14 The argumentation behind this standing point has been that “intermediate storage” differs from “deposition” in terminology and thus not included in the EIA regulation. 3. General Screening Criteria—Annex-2 Projects The third aspect of significant impacts/significance in the screening phase of EIA concerns the function of the screening facility in the light of reality. Do the criteria set up in the Danish Regulation 847, §3, subsection 2 make 13 Miljøstyrelsens skrivelse af 14 April 1991 vedr. midlertidig oplagring af forurenet jord pa˚ Amager Forland. (Letter from the Danish EPA regarding intermediate storage of contaminated soil on Amager Forland). 14 Appeal Board decisions in Case Nos. 33/101-0035 (Amager Forland) and 33/101-0044 (Grøften, Amager).
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it possible to deal with the practical problems in projects that might have significant impacts on the environment? Because the Regulation and the brief guidelines supporting the Regulation boast that screening on any simple project may be performed by municipal administrators in 30 minutes, the criteria to be interpreted must be extremely clear and fit any practical situation.
3A. The Local-plan Criteria One criterion for assessing the likely significance of environmental impacts of a proposed project, according to Danish Regulation 847, §3, subsection 2 (Table 1), is whether the project necessitates the adoption of a new local plan. Every square inch of Denmark is under some kind of existing plan. An altered use of the area/location that conflicts with guidelines in existing plans forces the adoption of a new plan for the relevant area/location.15 In general, it means that the implementation of EIA projects is not possible without triggering new planning procedures in accordance with Chapter 7 of the Planning Act. The strength of such a criterion is, of course, that the selection of projects subject to EIA procedures is thus linked to existing rationale and practices.16 A weakness is that the rules behind adoption and repealing of plans were not developed with this system in mind. Although many of the criteria behind the obligation to adopt a local plan are based on rationales very much like the rationale behind the screening facility in EIA procedures, these rationales are not comparable in all aspects. One of the general problems often seen in cases where the rationales of one regulatory system is implemented in another existing regulatory framework is the tendency towards a gradual colonization of the rationales of the “incoming system” from the rationales of the existing system. This trend was shown in Danish EIA functions regarding the local plan criterion see following. Furthermore, the adoption of a local plan—or any plan in Denmark—is based on the political will in the relevant decentralized body, e.g., the County Council or Municipal Council. 3Ai. Randers shopping center. In a case concerning the extension of a shopping center in a larger town, the Appeal Board decided that although the Municipal Council adopted a new local plan for the proposed project, this should not trigger EIA procedures. The proposed project is an Annex-1 project according to Regulation 847. The specific context and the argumentation supporting the Appeal Boards decision in the case makes it a useful element in interpretation of the criteria in §3, subsection 2, No. 1 in Regulation 847, although the specific context constitutes an indirect use of the screening criteria. 15 16
§11, subsection 2 and §13, subsection 1 in the Planning Act. Such procedures are regulated in Chapter 7 of the Planning Act.
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Shopping centers normally are subjected to obligatory EIA procedures in Regulation 847, if “by their size [they] are of regional importance.”17 In the case of Randers shopping center, an alteration in the layout and size of the project was reached by the adoption of a new local plan, but without triggering any EIA procedures. The new local plan was adopted, because the proposed project altered the layout of the center, compared to existing plans. The omission of EIA procedures spurred a complaint to the Appeal Board. The Appeal Board argued in their decision that it would have been possible to implement the extension of the existing center without invoking the duty to adopt a new local plan. Their rationale was that the alteration of the layout was not a major deviation compared to existing plans, and thus it would not require new plan procedures. As a consequence of this “non-triggering,” there was no need for an EIA procedure, and, consequently, the project was considered to have no significant impact on the environment. This reasoning may be criticized, because it is wrong to emphasize the question of substantial deviations in the newly adopted plan in light of the existing plan. The central question to be posed in this context is whether the new plan will lead to a project with significant impacts on the environment, regardless of the contents of an existing plan. The Randers decision is remarkable in light of the purpose of EIA—the assessment of actual changes that might occur as a consequence of implementation of a proposed project—and not a question of whether the adoption of a new plan represents any substantial deviation from the existing plan. Fundamentally, the decision calls for reconsideration of the screening criteria that trigger plan procedures. The planning system is based on securing coordinated, structured development, with special emphasis on the coordination of functions in the real world as well as in the symbolic world of plans. The mixing of these “two worlds of rationality” cannot take place without considering which of the two worlds must be given primacy. In other words, one must consider whether screening is performed within the rational frames of the EIA system and, thus, intended as a preliminary test of whether the likely impacts will be significant in the environment, or, conversely, whether the test’s purpose is determining if new plan procedures must be undertaken. If the rationale of the EIA system is given primacy, then the answer must be concerned with the predictable impacts of the proposed projects and its significance, not just with the likelihood that the project can be located within the framework of an existing plan. (The decision in the Randers case can lead to intensified traffic, where Annex-2 projects are dealt with in a two-step phase. The first step is to 17
Regulation 847, Annex 1, No. 33, cf. §3, subsection 1.
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adopt a new local plan, which makes it possible to establish a project subjected to EIA within the planned area, but without any concrete plans to do so. The second phase give consent to a concrete project without triggering EIA procedures, because it is not in conflict with guidelines expressed in the now existing plan. Jurisdiction to adopt local plans with such content is not restricted on these grounds). In light of the Randers decision, it seems that the criteria used for subjecting projects to EIA procedures are strictly formal, they do not lead to an initial assessment, based on the likelihood that significant impacts will result from the proposed project. 3Aii. Kyndby landfill site. Landfill depositions of household and industrial waste are subject to screening according to the Danish EIA Regulation.18 Since the County of Frederiksborg in 1989 adopted guidelines in the regional plan for the location of a deposition-installation for industrial and household waste in Kyndby, the project has been an object of public controversy. The adoption of the regional guidelines was not based on any screening regarding the likely significant impacts on the environment. The reason was that the Danish implementation of the EIA Directive did not include Annex-2 projects of the EU EIA Directive until October 1994. The Municipality subsequently adopted guidelines in the Municipality plan on the location of the deposition. During the public hearing period of the renewed regional plan for Frederiksborg in 1997, the Municipality became aware that the project should have been screened in accordance with Danish EIA Regulations. Under normal circumstances, a municipality is obliged to adopt the necessary local plan when an area has been designated for public purposes in planning documents. This rule is intended to protect private land-owners from long-time standing reservation on their land with the subsequent insecurity linked to such passive obligations. Public landuse reservations often are decided as long-term commitments. Until now, the Municipality has hesitated to adopt the local plan, mainly because the environmental impacts of the proposed project have not been investigated. The Municipality launched a complaint against the adoption of the Regional plan to the Appeal Board.19 It argued that the guidelines in the Regional plan was in conflict with the duty to submit EIA projects to an environmental assessment before adoption into the plan. The Municipality furthermore argued that if it adopted the required local plan, which already had been imposed on the Municipality as a duty, then the proposed project would automatically bypass the EIA Regulations §3, subsection 2 criteria on local plans. 18
Regulation 847, §3, subsection 2, cf. Annex 2, No. 8.c. Jægerspris Kommunes skrivelse af 31. Marts 1998 (Complaint from Jægerspris Municipality of 31. March 1998). 19
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The Appeal Board decided to sustain the decision in the Regional plan and emphasized that the municipality was obliged to adopt the local plan by reference to the interests of the private land-owner.20 The Appeal Board stated that the reservation of the deposition-location was not a concrete project but a long-term commitment imposed on the County according to other statutory rules in the Planning act than the EIA Regulation. The decision shows that the local-plan criteria for screening purposes does not live up to the intention behind the criteria. The fact is that if the municipality adopts the required local plan, it will be obliged to acquire the land from the land owner. The consequence will be that the implementation of the deposition need no further planning. The procedures to come will consequently focus only on the conditions of construction and operation of the project. 3Aiii. Artificial peninsula at the Oeresund bridge. The case concerns a deposition of what was determined by sectoral authority to be lightly contaminated soil from the construction works of the Oeresund bridge (the bridge between Denmark and Sweden). Greenpeace complained that the deposition of more than 150 kilotons of contaminated soil with a mixture of heavy metals and organic compounds was a deposition of toxic and/or hazardous waste or a deposition that could be referred to under Annex 2, No. 8c in the EIA Regulation (this category corresponds to Annex 2 of the EU EIA Directive). The Danish EPA made an evaluation of the soil contents and stated on the basis of four categories—danger to health, environment, epidemic hazards, and inflammability risks—that the soil could not be categorized as toxic and/or hazardous. The Appeal Board supported this categorization, although Greenpeace emphasized that the threshold values used by the EPA for the categorization were not similar to those imposed on county and municipal administrations performing the same evaluations. The question concerning the deposition in relation to the Annex-2 requirement was argued by Greenpeace by reference to non-existence of a local plan for the deposition area, thus, an environmental assessment was required (I shall not address the question of whether the deposition of soil from the bridge project should have been included in the environmental statement of the bridge project if adopted under Article 1(5) in the EU EIA Directive).21 The Appeal Board denied that the local-plan criteria were relevant, because the site in which the deposition was intended for implementation was under the regulation of a specific national act adopted with the purpose of realizing the Oeresund bridge in accordance with Article 20 Naturklagenævnets afgørelse af 28. April 1998 (Appeal Board Decision of 28. April 1998) sag.nr./case no. 97-33/200-0147. 21 This question is one of several questions subject to litigation between Greenpeace and the Danish Government in the Danish Supreme Court.
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1(5) of the EIA Directive.22 The Ministry for Transportation, which is responsible for the specific national act, did, during the hearing before the Appeal Boards decision, state that there was a general prohibition against deposition of any toxic or hazardous substances on the site. The decision is another example of how significance is handled in the formal domain rather than under real-world conditions. If the existing guidelines as decided by the Ministry for Transportation on the site contained a general prohibition against toxic and/or hazardous substances, then the rationales behind the local-plan criteria are triggered, namely, that the existing planning-designation of the area in question is not intended for waste deposition. 4. Concluding Remarks The case law described shows that the Danish EIA system lacks a focused approach to significance interpretation. The lack of focus is seen in the mixing of project definition/delimitation with the screening of projects. The lack of focus also is seen in the way the handling of significance is ambiguous from case to case, even when the content of the significance interpretation concerns the same criteria. The failure to include different dimensions of significance in the proper context also led to clearly biased decisions that bypass the fundamental function of the EIA regulation, namely, the purpose of avoiding the occurrence of environmental impacts by carefully performed planning and design of the project in question. Instead, the procedures frequently are used to defend the existing planning system and the way environmental problems usually are handled. It is one of the probable outcomes of integrating EIA into existing legal frameworks, without paying attention to the clash between different rationales behind each of the frameworks that are integrated. The composition of the Appeal Board also points at a fundamental misunderstanding regarding the nature of EIA. Although EIA is a decisionmaking procedure, it is first of all a procedure composed of formal phases. In each, formal requirements must be met. The formality of the EU EIA system cannot be conformed to the informality of the existing Danish planning regulation. Nevertheless, the implementation of the EIA system into the planning regulation obviously includes very sloppy enforcement of the legal requirements supporting the EU EIA system. Planning has always been perceived as a highly political discipline in Denmark, which is mirrored in the composition of the Appeal Board. But negligence of EIA requirements certainly is not a political question. The very brief, and 22 The question of the relationship between the specific national act and the adoption of the decision to implement the deposition also was investigated by the Appeal Board. According to the Appeal Board, the deposition was not regulated by the specific national act. Appeal Board Decision No. 33/150-0272).
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in certain cases very badly argued, decisions taken by the Board show that there are some profound misunderstandings regarding the nature of EIA and the subsequent demand for enforcement of these requirements in Denmark. The result of my investigation into a very small corner of the overall Danish EIA performance is discouraging. The fact is that Danish EIA regulations, despite being enacted in 1988, still lack fundamental support in understanding and handling the different stages of EIA procedures. In this context, it may seem hard to launch severe criticism towards the Appeal Board, because it is obviously very restricted in its actions. Nevertheless, I have chosen to sustain my criticism towards the practices of the Appeal Board, because the Board seems to be the only authority in a position to alter the overall picture. The ordinary Danish Courts are, in general, very reluctant to take initiatives towards any negligence from public authorities. Just at the time of printing, the Danish High Court decided to sustain the decision of the Appeal Board in the ring road case from Roskilde (see Section 2Ai). Danish EIA has a long way to go. References Basse, E.M. 1996. VVM i Danmark (EIA in Denmark). In Miljøkonsekvensvurderinger—i et retligt perspektiv (EIA—in a Legal Perspective), E.M. Basse (ed). Copenhagen: CadJura. Checklands, P. 1989. Soft systems methodology. In Rational Analysis for a Problematic World, J. Rosenhead (ed). New York: John Wiley and Sons. Cherp, O. 1993. Significance. Masters Thesis, University of Manchester, England. Jysle´n, J. 1997. Social impact assessment. Nordic Newsletter on EIA, No. 6, Roskilde University. Kjellerup, U. 1994. Legalitet og/eller legitimitet (Legality and/or legitimacy), kronik i dagbladet Information 16. (Essay in the Paper Information, August 1994). Kjellerup, U. 1995a. Miljøministeren den eneste at klandre (The minister the only one to blame..), kronik i dagbladet Information 24. (Essay in the Paper Information, March 1995). Kjellerup, U. 1995b. Projektbegrebet i VVM-direktivet (The term “project” in the EIA-Directive). In Norden og EU-Diretivet om Konsekvensutredninger (The Nordic Countries and the EIA-Directive). Nordic Council for Ministers, TemaNord, Copenhagen. Kjellerup, U. 1996. The Oeresund-litigation. In Environmental Rights—Law, Litigation and Access to Justice, B. Geters (ed). London: Cameron/May.