A transboundary EIA has recently been carried out in the process of the preparation and adoption of amendments and modifications to the national detailed site plan for the second track of the Divača–Koper railway line, where neighbouring Italy was involved in the assessment, as well as in the process of obtaining the environmental approval for the extension of the operating life of the Krško nuclear power plant (NEK) from 40 to 60 years, where Croatia, Austria, Italy, Hungary and Germany were involved in the assessment process.
What is the transboundary EIA?
A transboundary EIA is based on the Convention on Environmental Impact Assessment in the Transboundary Context, also known as the Espoo Convention, and the accompanying Protocol on Strategic Environmental Assessment (SEA). It constitutes one of the key international treaties regulating environmental impacts across national borders. It was ratified by Slovenia in the Act on the Ratification of the Convention on Environmental Impact Assessment in the Transboundary Context.[1] For projects that may cause significant adverse transboundary impacts, a contracting country is obliged to establish a transboundary EIA procedure under the Espoo Convention, which then considers and adopts measures to prevent, mitigate and control potential adverse environmental impacts on the other contracting countries. The Espoo Convention ensures that the environmental impacts of projects are dealt with in a comprehensive and transparent manner and facilitates international cooperation to protect the environment.
Transboundary EIA in Slovenia is regulated by the Environmental Protection Act (ZVO-2)[2] and related regulations. The Act stipulates that, in order to implement the principles of sustainable development, integrity and prevention, certain types of projects that may have a significant environmental impact require a comprehensive EIA, including transboundary impacts, to identify and assess environmental impacts and to verify the integration of the requirements of environmental protection, nature conservation, protection of human health, climate objectives and resilience to climate change, landscape and cultural heritage. The competent ministry shall on this basis approve the environmental acceptability of the implementation of such a project. The same rules apply in the environmental permit procedure (IED) if the installation has a transboundary impact.
Notification and cooperation process
When a country is planning or assessing an activity or project with potential transboundary impacts, it must inform the other potentially affected contracting countries as soon as possible, and at the latest at the same time as it notifies its public, i.e. at the time of public announcement or public consultation in the national context and provide them with all the relevant material. If a country has not been formally notified, it may itself request a transboundary assessment if it deems that the project may have a significant effect on its environment. If an affected country expresses a wish to cooperate, the planning country must provide it with all necessary information on the project and potential impacts, and the two countries must agree on a procedure for consultation, exchange of comments and public consultation in that country, and a time limit within which the other country must give its views. In the affected countries, the public (including NGOs and civil society) must also be informed and given the opportunity to comment and make suggestions.
The ZVO-2 sets maximum time limits within which the consultation procedures with the other countries must be completed, so that the competent Slovenian ministry can then make a final decision on the project. The Espoo Convention itself provides for the setting of reasonable time limits by the planning country; this serves as a safeguard against the risk that other countries may actually prevent the implementation of certain projects through the transboundary EIA procedure. According to publicly available information, the transboundary procedure in the project of the second track of the Divača–Koper railway line was carried out in parallel with the national procedure within a period of three months and included inter alia a 30-day public consultation on the project in Italy, while the Slovenian Ministry of Environment, Climate and Energy received the final opinion of Italy within the deadline, with certain proposals regarding the monitoring of the effectiveness of the mitigation measures and the follow-up of the cooperation, which Slovenia is expected to take into account in its final decision.[3] This kept the project within the timeframe foreseen in the transboundary EIA.
Clearly, the purpose and essence of the legal regulation of transboundary impact assessment is that the decisions of the national authority taken following such an EIA take into account the results of the assessment or adequately address the risks identified by other countries and provide for possible mitigation measures in the implementation of the planned projects. The main objective is to enable a comprehensive consideration of all aspects of environmental impacts, including impacts on human health, biodiversity, soil, water, air, climate, landscape, physical assets and cultural heritage in all areas to where the project’s impacts may extend. The final decision and the planned measures should then be duly communicated to the other affected countries.
The Espoo Convention stipulates that the planning country must ensure that the outcome of the transboundary EIA is duly taken into account in the final decision on the proposed project, including taking into account the EIA documentation, the comments of other countries and the results of any consultations. At the request of any country, the countries involved may also carry out an impact analysis after the project has been implemented. If any country deems that there are significant adverse impacts, the countries will then consult again on the necessary measures.
Neither the Espoo Convention nor the ZVO-2, however, provide for any specific legal remedies against the final decision, which would be available to the participating countries or their public if they object to the final decision of the Slovenian authority on the project, despite the consultations, and wish to prevent its implementation. The general rules on who can be a party to proceedings or an intervener before a national authority therefore apply.
What to expect in the case of JEK2
In the case of JEK2, we can certainly expect the strong involvement of neighbouring countries in the transboundary EIA process, in particular Austria, which is a vocal opponent of nuclear energy or the construction of new nuclear power plants. The very regulation of the procedure and past experience, such as the construction of the second track and the extension of the operating life of NEK, show that the transboundary EIA cannot, in principle, be an obstacle to the process, as it is regulated in such a way that potential abuses due to conflicting national interests can also be effectively addressed and prevented. Alternatively, countries may express their disapproval through other mechanisms in possible other proceedings against Slovenia, either before EU institutions or even before international bodies. For example, Austria demonstrated its opposition to nuclear power plant activities in Hungary in the past, including by bringing an action before the General Court of the CJEU against Hungary for the approval of state aid for investments notified by Hungary in favour of the state-owned company Paks II in connection with the operation of two nuclear reactors under construction at the Paks nuclear power plant site.
Such moves can delay the construction timetable, and therefore it is important to ensure that all prior obligations under environmental, planning and any other relevant regulations are duly and carefully met at all times to avoid unnecessary disputes. Although the whole process can be a challenge for large infrastructure projects, the transboundary EIA process itself is primarily an important tool and a consultative institute to ensure that human health and the environment are comprehensively protected, which can prevent much more serious and longer-term consequences. In this context, it is certainly true that strongly motivated parties to the process (other countries, foreign NGOs or civil initiatives) can also delay the project by their opposition on the grounds of transboundary environmental impacts in other ways that are not directly related to the environmental assessment itself.