Unntak fra plikten til å utføre miljøkonsekvensutredning i lys av EØS-retten ('Exception from the Duty to Carry Out Environmental Impact Assessment in Light of EEA Legislation')

FNI Report 3/2020. Lysaker, FNI, 2020, 66 p. In Norwegian

Norway has reformed rules on environmental impact assessment frequently in recent years. Starting out with a significant reform of the rules when a new Planning and Building Act was adopted and implemented in 2008, a subsequent reform followed in 2014 as a consequence of cases initiated against Norway by the EFTA Surveillance Authority due to concerns about Norway’s implementation of Directives 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment and 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. The 2014 revisions introduced separate regulations for environmental impact assessment of projects according to the 2011 EIA Directive and of plans and programmes according to the 2001 SEA Directive. The most recent revision reversed this separation, and reintroduced joint regulations for both Directives in the Environmental Assessment Regulations of 2017. One main purpose of the 2017 revision was to simplify and streamline the impact assessment procedures.

We were asked by the Ministry of Local Government and Modernisation to assess the compatibility to the EIA and SEA Directives of two rules establishing exemptions from the duy to carry out environmental assessment (Sections 6 b and 8 a of the Environmental Assessment Regulations of 2017). Our main conclusions are that adjustments are needed in order to secure compliance with the Directives and that we are unsure about the actual need for maintaining one of the exemptions (Section 8 a).

In order to ensure compliance with the Directives, we suggest that the following adjustments should be considered:
1. Introduce a duty to carry out EIAs for zoning plans («reguleringsplaner») where these probably will generate significant environmental consequences that have not been addressed in previous impact assessments.
2. Introduce a requirement that the impact assessment that has been carried out must comply with the procedural and substantive requirements of both the EIA and the SEA Directives as a condition for invoking the exemptions.

In order to clarify regulations on joint or coordinated procedures for EIA and SEA, we propose to:
3. Introduce a duty to decide, when starting up planning procedures or when determining whether SEAs or EIAs must be carried out, whether the impact assessment in question shall be carried out as an SEA, EIA or as a combined SEA and EIA.
4. Introduce a rule that clarifies which minimum requirments, both procedural and substantive, that must be fulfilled in order to comply with both the SEA and the EIA Directives. One should consider revision of the list in Section 21 of the Regulation (“description of factors that may be impacted and assessment of significant impacts to environment and society”).



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