The draft law 9516: the road to hell is paved with good intentions… or how the cancellation of requirements for EIA, clearcut sanitary logging and reduction of the powers of the Ministry of Environment will contribute to “effective management of forests on the basis of the principles of handling forestry close to nature, adapted to climate changes, forest biodiversity preservation”?!
Recently, people’s deputy Oleksandr Matusevych, together with a number of other people’s deputies, submitted for registration the Draft Law on Amendments to Certain Legislative Acts of Ukraine on Effective Forest Management Based on the Principles of Handling Forestry Close to Nature, Adapted to Climate Change, forest biodiversity preservation No. 9516.
Despite the wonderfully manipulative title, the draft law, on the contrary, foresees a significant weakening of the environmental protection component in forest management and forestry handling, including the narrowing of the scope of the Law of Ukraine “On Environmental Impact Assessment” in the field of forestry and non-compliance with the EU legislation. In particular, the draft law proposes to abandon EIA for clearcut sanitary logging, as well as to raise the threshold for conducting EIA for forest planting to 50-150 hectares. Moreover, the draft law allows afforestation in ecosystems where afforestation is expressly prohibited by current legislation, in particular in the natural zones of the Ukrainian steppe. (See the excerpt from the compative table below)
Moreover, the draft law proposes to deprive the Ministry of Environment of a number of powers related to approval of relevant documents in the field of forestry (amendments to Articles 291, 48 and 56), as well as to approval of calculated felling rate. It is proposed that instead of being approved by the central executive authority that ensures state policy development in the area of environmental protection (the Ministry of Environment), the calculated felling rate will be approved by the central executive authority that implements state policy in the forest sector (the State Agency of Forest Resources), while the Ministry of Environment will only give consent (amendments to Article 43 of the Forest Code).
The draft law also provides for changes to Article 29 “Powers of the central executive authority, which ensures state policy development in the area of environmental protection, in the area of forest relations”, which excludes from the powers of the relevant authority the approval of standards for the use of forest resources.
At the same time, the authors of the draft law did not explain in the explanatory note to the draft law how deprivation of the central executive authority, which ensures the state policy development (or the authority that implements state policy) in the area of environmental protection, of the relevant powers will contribute to “effective management of forests on the basis of the principles of handling forestry that is close to nature and adapted to climate changes, forests biodiversity preservation”.
Regarding amendments to the Law of Ukraine “On Environmental Impact Assessment”
Excerpt from the comparative table
Law of Ukraine “On Environmental Impact Assessment” | |
Current version of the law | Amendments proposed by the draft law 9516 |
Article 3. Scope of environmental impact assessment … 2. The first category of types of planned activities and objects that may have a significant impact on the environment and are subject to environmental impact assessment includes: … 21) all clearcut and gradual logging and clearcut sanitary logging on an area of more than 1 hectare; all clearcut sanitary logging on the territories and objects of the nature reserve fund; | Article 3. Scope of environmental impact assessment … 2. The first category of types of planned activities and objects that may have a significant impact on the environment and are subject to environmental impact assessment includes: … 21) all clearcut logging within the funds of clearcut logging as determined by forest management rules; all clearcut sanitary logging on the territories and objects of the nature reserve fund; |
3. The second category of types of planned activities and objects that may have a significant impact on the environment and are subject to environmental impact assessment includes: … 2) agriculture, forestry and water management sector: agricultural and forestry development, land reclamation and amelioration (water resources management for agriculture, including irrigation and land reclamation) on territories with an area of 20 hectares or more or on the territories and objects of the nature reserve fund or in their protection zones on the area of 5 hectares and more, construction of reclamation systems and separate objects of engineering infrastructure of reclamation systems; forest planting (except for reforestation works) on an area of more than 20 hectares Missing | 3. The second category of types of planned activities and objects that may have a significant impact on the environment and are subject to environmental impact assessment includes: … 2) agriculture, forestry and water management sector: Agricultural and forestry development, land reclamation and amelioration (water resources management for agriculture, including irrigation and land reclamation) on territories with an area of 20 hectares or more or on the territories and objects of the nature reserve fund or in their protection zones on the area of 5 hectares or more, construction of reclamation systems and separate objects of the engineering infrastructure of reclamation systems; afforestation in the natural zones of the Ukrainian Polissia, the Ukrainian Carpathians on an area of more than 150 hectares; Ukrainian forest-steppe on an area of more than 100 hectares; Ukrainian steppe and Mountain Crimea on an area of more than 50 hectares; on the territories and objects of the nature reserve fund or in their protection zones on an area of 5 hectares or more; felling of trees and shrubs on an area of more than 500 square meters in the event of a change in the intended purpose of forested land plots in order to use them for purposes not related to forestry management; |
EIA and clearcut sanitary logging
Both EPL’s research, and reports of other nature protection organizations have repeatedly demonstrated that under the guise of clearcut sanitary logging, forestry companies often perform commercial harvesting of wood in non-commercial forests, and the EIA procedure is almost the only mechanism that enables the state and the public to assess the real purpose and consequences of such logging for the environment. It is thanks to the openness of the EIA procedure that anyone can verify with his/her own eyes during the course of the EIA procedure whether the forest is really damaged, and provide to the Ministry of Environment or relevant department of the Regional State Administration the evidence of an opposite situation if such is detected and in this way actually stop illegal clearcut sanitary logging.
The Decision of the National Security and Defense Council of Ukraine dated September 29, 2022 “On the protection, defense, use and reproduction of forests of Ukraine in a special period”, put into effect by the Decree of the President of Ukraine No. 675/2022 dated September 29, 2022, states that in order to increase the level of environmental safety, it is necessary to introduce amendments to the Law of Ukraine “On Environmental Impact Assessment” regarding the revision of the size of the areas of forest plantations and sanitary logging of forests in the context of the application of environmental impact assessment. It should be noted that this decision means to review the size of the areas but not to completely exclude clearcut sanitary logging. It is not clear how the exclusion of clearcut sanitary logging from environmental impact assessment, which is one of the main tools for ensuring environmental safety, will contribute to increasing the level of environmental safety.
For more details please see “Sanitary” disease of the Ukrainian forest: https://texty.org.ua/d/2020/open_forestry/
EIA and afforestation
In this context, it is worth considering two aspects, namely geography and the scale of afforestation.
regarding the first point, the draft law provides for afforestation in natural zones of Ukrainian Polissia, Ukrainian forest-steppe and Ukrainian steppe
Instead, Article 82 of the Forest Code of Ukraine says that afforestation is performed in a way that ensures creation of climate-resistant forests with high protective properties, taking into account the prevention of invasions of alien species into natural ecosystems, and also prohibits afforestation on steppe areas. According to par 40 of the Forest reproduction rules, afforestation is not carried out on steppe and meadow areas, swamps and biomeadows.
Therefore, the proposed provisions directly contravene the current legislation.
regarding the scale of afforestation, which, according to the initiators of the draft law, does not require EIA
The EU Directive on EIA includes initial afforestation among activities that require EIA, but leaves it up to member countries to determine the appropriate threshold values, or to apply a screening procedure (determining the need for EIA) for each individual project. In Interpretation of definitions of project categories of annex I and II of the EIA Directive the EU leadership as an example of best practice, cites a member country where more than 20 ha of afforestation are subject to mandatory environmental impact assessment. In Lithuania, EIA is required for initial afforestation on an area of more than 1 ha in urban areas and more than 10 ha in rural areas. As the authors of the draft law state in the explanatory note, in Slovakia, afforestation of more than 5 hectares requires screening, and more than 10 hectares – mandatory EIA.
Therefore, the approach that proposes a significant increase in the threshold values for performing EIA regarding afforestation and is not based on objective justification of the absence of significant environmental consequences but on the desire not to undergo EIA, is wrong and contravenes European legislation.
The differentiation of threshold values in accordance with the division of the territory of Ukraine by natural zones, which includes those territories defined by legislation as such, where afforestation cannot be carried out due to the need to preserve ecosystems, for example, steppe, is not clear. Such a position will not comply with the Directive and the approaches used in the EU countries.
It should be noted that on the level of the European Union, there is approved division into biogeographic regions, which is enshrined in the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.
Creation of another division of forest natural zones with the only purpose to increase the threshold values for conducting EIA for afforestation projects is not only unjustified, but will also create an additional unjustified organizational and financial burden on the Ministry of Environment. After all, the draft law states that “The division of the territory of Ukraine by natural zones in terms of territorial communities is established by the Cabinet of Ministers of Ukraine at the request of the central executive authority, which ensures formation of state policy in the area of environmental protection and forest relations. (Amendments to Article 1 of the Forest Code).
Change in the type of land use
The subparagraph (d) of paragraph 1 of Annex II of the EIA Directive provides for the need to carry out an EIA regarding initial afforestation and deforestation for the purposes of conversion to another type of land use.
The new proposed provision on “felling of trees and shrubs on an area of more than 500 square meters in the event of a change in the intended purpose of forested land plots in order to use them for purposes not related to forestry management;” does not fully address the issue of compliance with the EU Directive on EIA. The authors of the draft law misinterpret the Directive and narrow the change in the type of land use to a change in the purpose of the land, which is not the same. Moreover, the authors define only a change in the purpose of forested land plots for the purpose of their use for purposes not related to forestry management, while the Directive, its guidelines and relevant EU case law clearly define that it is “any change in land use” (See, for example Interpretation of definitions of project categories of annex I and II of the EIA Directive, page 39).It should be noted that the Forest Code also provides for the conversion of forest land to non-forest land for purposes related to forestry (Article 59 of the Forest Code), and Article 19 of the Forest Code states that permanent forest users have the right to build roads, build residential buildings, industrial and other buildings and structures necessary for forest management in accordance with the legislation.
Therefore, the specified cases will not be covered by the proposed amendments. Accordingly, if the proposed changes are adopted, there will be a gap and non-compliance with the requirements of the EU Directive on EIA. In the current version of the law on EIA, taking into account the norms on clearcut sanitary logging and forest planting, there are no existing gaps and inconsistencies.
Thus, the amendments proposed to the Law of Ukraine “On Environmental Impact Assessment” by the draft law 9516 will lead to non-compliance with the EU Directive on EIA.
