Legal regulation of environmental impact assessment

General Provisions

The legal regulation of environmental impact assessment (EIA) plays a key role in ensuring ecological safety and rational use of natural resources. EIA allows for the identification and analysis of potential consequences of economic and other activities on the environment, as well as making decisions on the feasibility of implementing projects taking into account ecological and socio-economic factors. In Russia, the legal basis for EIA is formed by federal laws, regional regulatory acts, and international agreements, one of the parties to which is the Russian Federation.

The EIA procedure includes a set of activities aimed at collecting, processing and assessing information on the impact of planned activities on nature. According to Russian legislation, it involves not only scientifically based assessment of environmental consequences, but also taking into account public opinion when making decisions. An important aspect is transparency: EIA materials should be available for review by interested parties, which contributes to the development of ecological awareness and increases the responsibility of economic entities.

The main principles of EIA include the presumption of potential environmental hazards associated with any planned activity, consideration of alternative options for implementing projects, prevention of possible negative consequences and ensuring openness of the procedure. These principles ensure a comprehensive approach to assessing the impact on the environment and allow minimizing the risk of environmental damage when implementing projects of various scales and industry affiliations.

In the legislation of the Russian Federation, three stages of EIA are established: notification and preparation of a technical assignment, conducting studies and preparing a preliminary version of the documents, as well as forming the final report. The results of the EIA are used to justify the selection of locations for objects, technologies, and for making decisions to refuse implementation of activities if they pose an excessive environmental risk.

Despite the developed regulatory framework, scientific and legal literature highlights issues with EIA: insufficient differentiation of procedures for different types of activities, late informing the public, and lack of effective sanctions for improper conduct of the assessment. Resolving these issues contributes to strengthening the legal mechanism for protecting the environment and increasing the effectiveness of environmental oversight in Russia.

As S.A. Bogolyubov notes, the mandatory environmental impact assessment (EIA) of each project, which has turned around the ecological and economic situation in a number of countries, has been making its way in our country for two decades but encounters difficulties in publishing and other methods of disclosing EIA, conducting and recording public hearings, challenging decisions made on projects in court, etc.¹.

The legal basis for carrying out an environmental impact assessment consists of the legislation of the Russian Federation, the legislation of the subjects of the Russian Federation, international treaties and agreements to which the Russian Federation is a party, as well as decisions adopted by citizens through referendums and as a result of the implementation of other forms of direct democracy².

General provisions on EIA are provided by the Federal Law "On Environmental Protection". A special normative legal act in the field of EIA is the order of the State Committee for Environmental Protection of Russia "On Approval of the Regulation on the Assessment of the Impact of Planned Economic and Other Activities on the Environment in the Russian Federation"³.

According to Article 1 of the Federal Law "On Environmental Protection," an environmental impact assessment is a type of activity aimed at identifying, analyzing and taking into account direct, indirect and other consequences of the impact on the environment caused by planned economic and other activities in order to make a decision regarding the possibility or impossibility of their implementation. Such a definition, according to S.A. Bogolyubov, can, of course, be subject to scientific criticism, since any definition is incomplete, imperfect, intended to highlight the main characteristic features of a phenomenon, especially in the context of regular attempts to undermine EIA and environmental expertise, which act as obstacles to uncontrolled construction and non-ecological, anti-ecological investments⁴.

At the same time, in the Regulation on Environmental Impact Assessment of Proposed Economic and Other Activities in the Russian Federation, the procedure for EIA is defined somewhat differently. According to this Regulation, environmental impact assessment is a process aimed at making environmentally oriented management decisions regarding the implementation of proposed economic and other activities by identifying possible adverse effects, assessing environmental consequences, taking into account public opinion, and developing measures to reduce and prevent impacts⁵.

Definitions of EIA are also proposed in scientific literature. According to M.M. Brinchuk, EIA is an activity aimed at determining the nature and extent of the potential impact of planned activities on the environment, expected environmental and related social and economic consequences during and after implementation of such a project, and development of measures for ensuring rational use of natural resources and protection of the environment from harmful impacts in accordance with the requirements of current environmental legislation⁶.

If the planned economic and other activities may have transboundary effects, research and preparation of materials for the assessment of environmental impact are carried out taking into account the provisions of the UNECE Convention on the Assessment of Transboundary Environmental Impact⁷. The aforementioned Convention⁸ was adopted in Espoo, Finland on 25 February 1991, signed in February 1991 by the State Committee for Natural Resources of the USSR on behalf of the former USSR, the successor of which is the Russian Federation⁹ and has not been ratified by the Russian Federation to date.

It is also important to note that the EIA (Environmental Impact Assessment) is conducted with respect to planned economic and other activities that may have a direct or indirect impact on the environment, regardless of the organizational and legal forms of ownership of the entities engaged in such economic and other activities (paragraph 1 of Article 32 of the Federal Law "On Environmental Protection"), for the proposed economic and other activities, the justification documents of which are subject to environmental expertise in accordance with the Federal Law "On Environmental Expertise"¹⁰.

The purpose of conducting an EIA is to prevent or mitigate the impact of this activity on the environment and related social, economic and other consequences¹¹.

As noted by N.V. Kichigin, according to Russian legislation, EIA should be conducted with respect to any planned economic and other activities, and the EIA procedure applicable to different objects is not differentiated. As a result, an oil and gas field development project and a project for constructing an auto workshop must undergo the impact assessment procedure under a single uniform procedure¹².

The main principles of environmental impact assessment are: 1) the presumption of potential ecological hazard of any planned economic or other activity; 2) prevention of possible adverse impacts on the environment and related social, economic and other consequences in the case of implementation of planned economic or other activities; 3) consideration of alternative options for achieving the goal of planned economic or other activities, as well as the "zero option" (refusal from the activity); 4) transparency (ensuring public participation in preparation and discussion of materials on environmental impact assessment of planned economic or other activities); 5) reliability and completeness of information about the nature and scale of impact on the environment of the planned activity, alternatives for its implementation (the client is obliged to provide all participants in the environmental impact assessment process with the opportunity to timely obtain complete and reliable information)¹³.

The legislation provides for three stages of conducting an EIA: 1) notification, preliminary assessment and preparation of a technical assignment for the conduct of an environmental impact assessment; 2) carrying out studies on the environmental impact assessment and preparing a draft version of the materials for the environmental impact assessment; 3) preparing the final version of the materials for the environmental impact assessment¹⁴.

At the same time, as noted by M.V. Ponomarev, the procedure for conducting an EIA is based on the necessity of public participation, including informing the public about planned economic and other activities, and involving the public in the process of conducting the EIA, which is carried out by the client at all stages of this process, starting from the preparation of a technical assignment for the conduct of the EIA. However, in practice, familiarization of the public with the materials of the EIA takes place at the final stage of their preparation¹⁵.

The results of the environmental impact assessment include: 1) information on the nature and scale of the impact of the proposed activity on the environment, alternatives for its implementation, an assessment of ecological and related socio-economic and other consequences of this impact and their significance, as well as the possibility of minimizing impacts; 2) identification and consideration of public preferences when the client makes decisions regarding the proposed activity; 3) the client's decisions to determine alternative options for implementing the proposed activity (including the location of the facility, selection of technologies and other aspects) or to abandon it, taking into account the results of the environmental impact assessment¹⁶. In this regard, materials on the environmental impact assessment of the proposed economic and other activities, which are subject to ecological expertise, are included in the documentation submitted for expert review¹⁷.

Thus, among the main problems of EIA in scientific literature are identified: 1) absence of sanctions for improper conduct of EIA; 2) the EIA procedure is not differentiated with respect to different types of activities; 3) public familiarization with EIA materials takes place at the final stage of their preparation¹⁸.