The revision of the Environmental Impact Assessment Act

Kōbe is a city and municipality in Japan, located south of the island of Honshū, on the north shore of Osaka Bay. Between January 18 and 22, 2005, the World Conference on Disaster Reduction was held in this town, which, under the title: Increasing the resilience of nations and communities to disasters, established the so-called United Nations Hyogo Framework for Action for 2005-2015.

This framework emphasized the need to establish procedures for evaluating the impact of major infrastructure projects on disaster risk.

Among the agreed actions for the reduction of risk factors, it was indicated that, within land use planning and other technical measures, countries should include the consideration of disaster risk in the planning procedures for important infrastructure projects, such as the criteria for the design, approval and execution of such projects and considerations based on assessments of social, economic and environmental impacts.

From this agreement, the European Union transferred the Community standard, through Directive 2014/52/EU of the European Parliament and the Council of April 16, 2014, amending Directive 2011/92/EU, relating to the evaluation of the impact of certain public and private projects on the environment.

The preamble to the directive stated that:

• efficiency in the use of resources and their sustainability,
• the protection of biodiversity,
• climate change
• and the risks of accidents and catastrophes,

They are important elements in evaluation and decision-making processes.

And specifically, to ensure a high level of environmental protection, preventive measures must be taken with respect to certain projects that, due to their vulnerability to serious accidents or natural disasters, such as floods, rising sea levels or earthquakes, can have significant adverse effects on the environment. With regard to these projects, it is important to take into consideration their vulnerability (exposure and resilience) to serious accidents or catastrophes, the risk of such accidents or catastrophes occurring and the implications for the likelihood of significant adverse effects on the environment.

THE LAW

This paragraph, translated literally from the directive, is the basis of one of the new precepts of the last revision of national environmental impact legislation. Law 9/2018, of December 5, amending Law 21/2013, of December 9, on environmental assessment, Law 21/2015, of July 20, amending Law 43/2003, of November 21, on Forestry and Law 1/2005, of March 9, regulating the regime of greenhouse gas emission rights trading.

This standard introduces new obligations to the developer, including the need to incorporate the Environmental impact study an analysis of the vulnerability of projects to serious accidents or catastrophes, of the risk of such accidents or catastrophes, and of the probable significant adverse effects on the environment, if they occur.

As detailed in this paragraph, there are three key words: Vulnerability, Accident and Catastrophe.

Necessary to be able to understand this new way of evaluating plans, programs and projects, and that within Article 5, these are defined:

1. f) “Project vulnerability”: physical characteristics of a project that may affect the potential significant adverse effects that may occur on the environment as a result of a serious accident or catastrophe.
2. g) “Serious accident”: an event, such as an emission, fire or explosion of great magnitude, resulting from an uncontrolled process during the execution, operation, dismantling or demolition of a project, which poses a serious danger, either immediate or deferred, to people or the environment.
3. h) “Disaster”: an event of natural origin, such as floods, rising sea levels or earthquakes, outside the project that causes great destruction or damage to people or the environment.”

And that they should immediately be included within the scope and content of Environmental Impact Studies.

For the ordinary procedure, within Article 35 letter d), and for the simplified procedure, within Article 45, letter f): A specific section will be included that includes the identification, description, analysis and, if appropriate, quantification of the expected effects on the factors listed in letter c) (or letter e)), derived from the vulnerability of the project to the risks of serious accidents or catastrophes, on the risk of such accidents or catastrophes, and on the probable significant adverse effects on the environment, in the event of their occurrence, or a supporting report on the non-application of this section to the project.

And for the preparation of these sections, the developer may use the relevant information obtained through risk assessments carried out in accordance with other standards, such as the regulations relating to the control of risks inherent to serious accidents involving dangerous substances, as well as the regulations that regulate the nuclear safety of nuclear installations.

The administration will gather information, to evaluate these actions within the public information phase. As established in Article 37. Point 1. Simultaneously with the processing of public information, the substantive body will consult the affected Public Administrations and interested persons on the possible significant effects of the project, which will include the analysis of the probable significant adverse effects on the environment derived from the vulnerability of the project to the risks of serious accidents or catastrophes affecting the project.

SUMMARY

Therefore, this change is no minor, since it represents a new milestone to be detailed and evaluated in environmental procedures. And that will involve an implementation in the description of the projects, as well as in the territorial analysis of their location. Converting hydrological (and hydrogeological) and seismic factors, cross-cutting elements into the assessment of the reception capacity of a project, due to its vulnerability to floods and rising sea levels or earthquakes.

In the same way, the probability of relevant events must be taken into consideration within the procedure. And specifically, the generation of emissions, discharges, fires and explosions, as a result of a serious accident, must be part of the environmental document.

For these cases, there are regulated regulations, which can help to catalog these types of accidents, or at least, their possible consequences. As is the case of the Risk Analyses included in Law 26/2007, of October 23, on Environmental Responsibility. Or what is established in master plans against fires, and other accidents.

CALENDAR

The entry into force of this regulation is established in the single transitory provision, which indicates that the amendments to the law take effect the day after their publication, and therefore affect new projects with a starting date of December 7, 2018.

Most importantly, projects whose evaluation began after May 17, 2017, will be subject to an additional review prior to the issuance of the environmental impact statement.

Therefore, if your project is located in an area with seismic risk, in a floodable area, close to the coast,..., or on the border with a mountain, municipality,... Or there are risks of serious accidents during its construction, development and demolition, you should be aware that your study may be subject to revision, and that you must adapt it to this new standard.