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Position of the Ministry of environment and natural resources on the propositons and commentaries of EACLA
Tuesday, 09 August 2011 17:00

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Position of the Ministry of environment and natural resources on the propositons and commentaries of EACLA to the law draft "On amendments to the laws of Ukraine about implementation of the Espoo Convention"

On June 16, 2011 Expert Advisory Centre "Legal Analytics" (EACLA) prepared the comments and suggestions to the Law draft "On amending some laws of Ukraine on implementation of the Convention on Environmental Impact Assessment in a Transboundary Context" and sent them to the Ministry of Environment and Natural Resources of Ukraine.

Propositions of the Center were related to the inclusion in the law draft the regulations, which provide amendments to the Law "On regulation of city planning" in terms of environmental impact assessment of construction projects in a transboundary context.

On July 25, 2011 Expert Advisory Centre "Legal Analytics" received the answer of the Ministry of Environment and Natural Resources of Ukraine about the results of consideration of the comments and suggestions prepared by EACLA.

The fact that the Ministry in accordance with the provisions of the legislation of Ukraine not only reported consideration or disregarded suggestions of the Center but also provided reasons for their position on the disagreement with the proposition of the Center should be noted as positive practice of public participation in decision making process.

Center proposed to amend the Law of Ukraine “On regulation of city planning” with the provisions according to which the project documentation necessary for examination (expertise) must include Environmental Impact Assessment in Transboundary Context, (prepared according to the procedure approved by the Cabinet of Ministers of Ukraine), in the case when construction projects’ planned activities are subject to international agreements on the environmental impact assessment in transboundary context.

Position of the Ministry

Ministry indicates that such changes are impractical, because the objects that have an impact on the environment in a transboundary context are subjects to environmental expertise.

Environmental Impact Assessment is endowed with greater flexibility and therefore covers those activities by the Espoo Convention, which are not related to construction.

Ministry noted that the amendments to the Law of Ukraine "About regulation of city planning," proposed by the Center, will not properly implement the provisions of the Espoo Convention, as Annex 1 to this Convention envisage certain activities that are not considered as construction.

According to the Law of Ukraine "On environmental expertise" the state environmental expertise is required for activities and facilities that are highly hazardous.

Comments of the Center

Law of Ukraine “On regulation of city planning” amended Article 14 of the Law of Ukraine "On environmental expertise", and the following objects were excluded from the list of objects of environmental expertise: investment projects, technical economical argumentations and estimations, projects and working projects of the construction of new and expansion, reconstruction, technical modernization of existing enterprises and other planning project documentation.

It is worth mentioning that the Convention on Environmental Impact Assessment in a Transboundary Context, does not contain such term as "highly hazardous". Article 2 of the Espoo Convention noted that the Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant transboundary environmental impact from proposed activities.

The current version of the Law of Ukraine "On environmental expertise" does not contain any provisions on transboundary aspect during the examination (expertise) but the Law of Ukraine "On regulation of city planning" includes provisions relating to the relevant Convention.

Conclusions of the Center

Existing law draft does not contribute sufficiently to the implementation of the recommendations of the VI session of the Meeting of the Parties to the Espoo Convention in 2008, which brought to the attention of the Government of Ukraine the need for developing administrative measures to implement the provisions of the Espoo Convention.

Because of the incompleteness of the amendments to the legislation that are commented by EACLA the conflict of legislation regarding environmental expertise and expertise of projects construction in the future is quite predictable, though the answer provided by the Ministry reflects different position.