Legal Regulation of Environmental Expertise

General Provisions

The legal regulation of environmental expertise plays a key role in ensuring the protection of the environment and preventing negative consequences of economic activities. It establishes the legal basis for assessing projects, documents, and decisions that may affect the ecological condition of territories. Legislation regulates the procedure for conducting the expertise, the powers of experts, and the mandatory consideration of its results when implementing projects and programs.

Environmental expertise is a legal mechanism aimed at determining the compliance of planned economic and other activities with requirements for environmental safety. State expertise ensures the legal force of conclusions that are mandatory for the implementation of projects, while public expertise allows citizens and environmental organizations to participate in monitoring and assessing the impact on the environment. Such an integrated approach contributes to increasing transparency and accountability when making management decisions.

The legal regulation establishes the principles of environmental assessment, including the mandatory conduct of assessments prior to the implementation of projects, comprehensive impact evaluation, independence of experts, reliability of presented information, and transparency of procedures. These principles are aimed at ensuring a reliable and objective analysis of environmental risks, reducing negative impacts on nature, and protecting citizens' rights to a favorable environment.

The state environmental assessment is carried out by federal bodies and the bodies of the subjects of the Russian Federation in accordance with established laws and regulatory acts. The conclusion of the state assessment may be positive or negative, determining the possibility of financing and implementation of projects. A positive conclusion becomes a mandatory condition for starting the implementation of projects, while a negative one prohibits their implementation until the identified violations are rectified.

Public environmental expertise is conducted on the initiative of citizens and public organizations, as well as local self-government bodies. It allows society to be involved in the processes of assessing and controlling environmental risks, with the results being taken into account during state expertise and acquiring legal force after approval by the relevant authorities. This system ensures a combination of state control and public participation, increasing the effectiveness of legal regulation of environmental expertise.

According to S.A. Bogolyubov, environmental assessment, along with the evaluation of the impact on the environment of any economic decision or project, serves as a basis for preventing anti-environmental legislative decisions¹. Considering the relationship between EIA and environmental assessment, M.M. Brinchuk notes that if state environmental assessment is a legal means of ensuring the consideration and implementation of environmental requirements at the stage of adopting economic, managerial, and other decisions, then EIA is the main legal means of ensuring the consideration and implementation of these requirements at the stage of preparing the corresponding economic decision².

The legal basis for environmental expertise consists of: the Federal Law "On Environmental Protection"; the Federal Law "On Environmental Expertise". The aforementioned Federal Law regulates relations in the field of environmental expertise, aimed at implementing the constitutional right of citizens of the Russian Federation to a favorable environment through preventing adverse impacts of economic and other activities on the environment.

In Article 1 of the Federal Law "On Environmental Expertise", environmental expertise is defined as determining the compliance of documents and (or) documentation justifying the planned economic and other activities associated with the implementation of an object of environmental expertise, with ecological requirements established by technical regulations and legislation in the field of environmental protection, in order to prevent adverse effects of such activities on the environment.

Principles of environmental expertise are: 1) presumption of potential environmental hazard of any planned economic and other activities; 2) mandatory conduct of state environmental expertise prior to making decisions on the implementation of an object of environmental expertise; 3) comprehensiveness of assessment of impact on the environment from economic and other activities and its consequences; 4) mandatory consideration of requirements for environmental safety during the conduct of environmental expertise; 5) reliability and completeness information presented for environmental review; 6) independence of experts conducting environmental review when exercising their powers in the field of environmental review; 7) scientific validity, objectivity and legality of conclusions of environmental review; 8) transparency, participation of public organizations (associations), taking into account public opinion; 9) liability of participants in environmental review and interested parties for the organization, conduct, and quality of environmental review³.

In the Russian Federation, state environmental expertise and public environmental expertise are carried out (Article 4 of the Federal Law "On Environmental Expertise"). As noted by M.M. Brinchuk, there are two significant differences between state and public environmental expertise. The first relates to the fact that public expertise is initiative-based, while state expertise is mandatory. The second difference is related to the legal force of the expert conclusion. The conclusion of public environmental expertise acquires force after its approval by a specially authorized state body in the field of environmental expertise⁴. At the same time, according to N.V. Kichigin, despite differences in the subjects participating in the conduct of the expertise, and in the legal consequences of the conclusions of state and public environmental expertise, they are united by one very important element – objects of environmental expertise⁵. M.V. Ponomarev notes that conducting other types of environmental assessments (departmental, scientific) is not prohibited, however, they do not entail legal consequences, unlike primarily the state environmental assessment⁶.

State Environmental Expertise

The state environmental expertise is organized and conducted by the federal executive authority in the field of environmental expertise, and by the state authorities of the subjects of the Russian Federation in accordance with the Federal Law "On Environmental Expertise," other normative legal acts of the Russian Federation, laws and other normative legal acts of the subjects of the Russian Federation (Article 10 of the Federal Law "On Environmental Expertise").

Objects of federal-level state environmental expertise include: 1) projects of normative-technical and instructive-methodological documents in the field of environmental protection, approved by the bodies of state authority of the Russian Federation; 2) projects of federal target programs providing for the construction and operation of objects of economic activity that have an impact on the environment, in terms of locating such objects taking into account the regime of nature conservation; 3) project agreements on production sharing; 4) materials justifying licenses for carrying out certain types of activities that have a negative impact on the environment and licensing of which is carried out in accordance with the Federal Law "On Licensing Certain Types of Activities"⁷ (excluding materials justifying licenses for carrying out activities related to the collection, use, neutralization, transportation and placement of waste) and legislation in areas of use of atomic energy by federal executive authorities; 5) projects of technical documentation for new equipment and technologies whose use may have an impact on the environment, as well as technical documentation for new substances that may enter the natural environment; 6) materials of comprehensive environmental surveys of territory areas, justifying the assignment of these territories the legal status of specially protected natural areas of federal importance, ecological disaster zones or zones of extraordinary ecological situations (Article 11 of the Federal Law "On Environmental Impact Assessment").

According to Article 12 of the Federal Law "On Environmental Impact Assessment," state environmental assessment of regional-level objects is conducted by the state authorities of the subjects of the Russian Federation in accordance with the procedures established by this Federal Law and other normative legal acts of the Russian Federation.

Objects of regional-level state environmental expertise include: 1) project normative-technical and instructive-methodological documents in the field of environmental protection, approved by the state authorities of the subjects of the Russian Federation; 2) projects of target programs of the subjects of the Russian Federation providing for the construction and operation of facilities of economic activity that have an impact on the environment, in terms of the location of such facilities taking into account the regime of protection of natural objects; 3) materials justifying licenses for the conduct of certain types of activities, licensing of which is carried out by the executive authorities of the subjects of the Russian Federation in accordance with the Federal Law "On Licensing Certain Types of Activities" (excluding materials justifying licenses for the conduct of activities related to the collection, use, neutralization, transportation, and placement of waste); 4) materials of comprehensive environmental survey of territory areas justifying granting these territories the legal status of specially protected natural areas of regional significance; 5) a state environmental impact assessment object at the regional level, specified in this article and previously having received a positive conclusion from the state environmental impact assessment, in the following cases: refinement of such an object according to comments from the previously conducted state environmental impact assessment; implementation of such an object with deviations from the documentation that has received a positive conclusion from the state environmental impact assessment, and/or in the case of changes made to this documentation; expiration of the term of validity of the positive conclusion from the state environmental impact assessment; making changes to the documentation for which there is a positive conclusion from the state environmental impact assessment.

According to Article 18 of the Federal Law "On Environmental Expertise," the conclusion of state environmental expertise is a document prepared by the expert commission on state environmental expertise containing substantiated conclusions regarding the compliance of documents and (or) documentation justifying the economic and other activities planned in connection with the implementation of the object of environmental expertise, with ecological requirements established by technical regulations and legislation in the field of environmental protection, approved by a qualified majority of the members of the aforementioned expert commission, and corresponding to the assignment for conducting environmental expertise issued by the federal executive authority in the field of environmental expertise or by the authorities of the subjects of the Russian Federation. The conclusion prepared by the expert commission on state environmental expertise is accompanied by special substantiated opinions of its experts who disagree with the conclusion adopted by this expert commission. The conclusion prepared by the expert commission of the state environmental expertise is signed by the head of this expert commission, its responsible secretary, and all its members, and cannot be amended without their consent.

The conclusion prepared by the expert commission of the state environmental expertise, after its approval by the federal executive authority in the field of environmental expertise or by the state authorities of the subjects of the Russian Federation, acquires the status of a state environmental expertise conclusion. Approval of the conclusion prepared by the expert commission of the state environmental expertise is an act confirming that the procedure for conducting state environmental expertise complies with the requirements of the Federal Law "On Environmental Expertise" and other normative legal acts of the Russian Federation. The conclusion of state environmental expertise on objects of federal and regional level environmental expertise, except for projects of normative legal acts of the Russian Federation, may be either positive or negative.

A positive conclusion of the state environmental expertise is one of the mandatory conditions for financing and implementing an object subject to state environmental expertise. A positive conclusion of the state environmental expertise has legal force for the period determined by the federal executive authority in the field of environmental expertise or by the authorities of the subjects of the Russian Federation conducting a specific state environmental expertise.

A positive conclusion of the state environmental expertise loses its legal force in the following cases: revision of the object of state environmental expertise according to the comments from a previously conducted state environmental expertise; changes in the conditions of nature use by the federal executive authority in the field of environmental protection; implementation of the object of state environmental expertise with deviations from the documentation that received a positive conclusion of the state environmental expertise, and (or) in the case of amendments to this documentation; expiration of the term of validity of the positive conclusion of the state environmental expertise; introduction of changes to the design and other documentation after receiving a positive conclusion of the state environmental expertise.

The legal consequence of a negative conclusion of the state environmental expertise is a prohibition on implementing the object of state environmental expertise. Non-compliance with the requirement for mandatory conduct of state environmental expertise for an international treaty project is a basis for its annulment. Conclusions of state environmental expertise for projects of normative legal acts of the Russian Federation are considered by the state authorities adopting these acts.

The conclusion of the state environmental expertise is sent to the client. In order to perform the relevant control functions, information on the conclusion of the state environmental expertise is forwarded to territorial bodies of the federal executive authority in the field of environmental protection (in the case when the state environmental expertise is conducted by a federal executive authority in the field of environmental expertise), executive authorities of the subjects of the Russian Federation, and local self-government bodies, and in cases determined by the federal executive authority in the field of environmental expertise - credit institutions that provide financing for the implementation of the object of state environmental expertise.

In the case of a negative conclusion of the state environmental expertise, the client is entitled to submit materials for re-examination by the state environmental expertise provided that they are revised taking into account the comments set forth in this negative conclusion. Conclusions of the state environmental expertise may be challenged in court.

Public Environmental Expertise

Public environmental expertise is organized and conducted at the initiative of citizens and public organizations (associations), as well as at the initiative of local self-government bodies by public organizations (associations), whose main direction of activities, in accordance with their charters, is the protection of the environment, including the organization and conduct of environmental expertise, and which are registered in accordance with the legislation of the Russian Federation (Article 20 of the Federal Law "On Environmental Expertise"). Public environmental expertise may be conducted in relation to objects of state environmental expertise, except for objects of environmental expertise, information about which constitutes a state, commercial, or other legally protected secret (Article 21 of the Federal Law "On Environmental Expertise").

Public environmental expertise is conducted prior to the state environmental expertise or simultaneously with it. Public environmental expertise may be carried out independently of the conduct of state environmental expertise for the same objects of environmental expertise.

Public organizations (associations) conducting public environmental expertise in accordance with the procedure established by the Federal Law "On Environmental Expertise" have the right: to receive from the client documentation subject to environmental expertise in the scope provided in paragraph 1 of article 14 of the Federal Law "On Environmental Expertise"⁸; to familiarize themselves with normative and technical documentation establishing requirements for conducting state environmental expertise; to participate as observers through their representatives at meetings of expert committees on state environmental expertise and to participate in discussions of conclusions from public environmental expertise conducted by them.

The requirements set out in paragraph 2⁹ and the second¹⁰, third¹¹, fifth¹², seventh¹³ paragraphs of paragraph 5 of Article 16 of the Federal Law "On Environmental Impact Assessment" (Article 22 of the Federal Law "On Environmental Impact Assessment") apply to experts involved in conducting public environmental impact assessment when they carry out environmental impact assessment.

Public environmental expertise is conducted upon the condition of state registration of an application by public organizations (associations) for its conduct. If applications for conducting public environmental expertise on one object of environmental expertise are submitted by two or more public organizations (associations), the establishment of a single expert commission is allowed. The local self-government body must register the application for conducting public environmental expertise or refuse to register it within seven days from the date of submission. An application for conducting public environmental expertise, in which registration has not been refused within the specified period, is considered registered.

In the statement of public organizations (associations) requesting a public environmental expertise, the following information must be provided: the name, legal address and location (place of residence), nature of activities as stipulated by the charter, details regarding the composition of the expert commission for the public environmental expertise, information about the object of the public environmental expertise, and the timeline for conducting the public environmental expertise. Public organizations (associations) organizing a public environmental expertise are obliged to inform the population about the commencement and results of its conduct (Article 23 of the Federal Law "On Environmental Expertise").

The state registration of an application for conducting a public environmental expertise may be refused in the following cases: if a public environmental expertise has previously been conducted twice with respect to the object of public environmental expertise; if the application for conducting a public environmental expertise was submitted regarding an object whose information constitutes a state, commercial or other legally protected secret; if the public organization (association) is not registered in accordance with the legislation of the Russian Federation¹⁴ on the day of applying for the state registration of the application for conducting a public environmental expertise; if the charter of the public organization (association) organizing and conducting the public environmental expertise does not comply with the requirements of Article 20 of the Federal Law "On Environmental Expertise"¹⁵; if the requirements for the content of the application for conducting a public environmental expertise provided for in Article 23 of the Federal Law "On "the ecological expertise"¹⁶ have not been carried out.

The list of grounds for refusing state registration of an application for conducting a public environmental expertise is exhaustive. Officials of local self-government bodies are liable for unlawful refusal to register an application for conducting a public environmental expertise (Article 24 of the Federal Law "On Environmental Expertise").

The conclusion of the public environmental expertise is sent to the federal executive authority in the field of environmental expertise or to the state authority of a subject of the Russian Federation responsible for conducting state environmental expertise, the client of the documentation subject to public environmental expertise, the bodies making decisions on the implementation of objects of environmental expertise, local self-government bodies, and may be forwarded to other interested parties.

The conclusion of the public environmental expertise acquires legal force after its approval by the federal executive authority in the field of environmental expertise or by the state authority of a subject of the Russian Federation. When conducting state environmental expertise, the conclusion of the public environmental expertise is taken into account if the public environmental expertise was conducted with respect to the same object before the expiry date of the term for conducting state environmental expertise.

In the event that a public environmental expertise conclusion is granted legal force, the requirements of articles 30 - 34 of the Federal Law "On Environmental Expertise" regarding criminal, administrative, material, and civil liability apply to the head and members of the public environmental expertise expert commission. Conclusions of public environmental expertise may be published in mass media, transmitted to local self-government bodies, state environmental expertise bodies, documentation clients subject to public environmental expertise, and other interested parties (article 25 of the Federal Law "On Environmental Expertise").