On 4 October 2016, the Parliament of Ukraine adopted the Law of Ukraine “On Strategic Environmental Assessment”. The adoption of the law was stipulated primarily by Ukraine’s international obligations within the EU-Ukraine Association Agreement and the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context.
According to the EU-Ukraine Association Agreement, Ukraine was supposed to perform full transposition of the EU Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment before 1 November 2014. The Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context was ratified on 1 July 2015.
Nevertheless, on 31 October 2016 the President of Ukraine used his veto power and returned the law on strategic environmental assessment for elaboration. The President’s remarks, in particular, state that majority of the law provisions are declarative, unclear, internally contradictory and are not fully compatible with other legislation and thus the law does not comply with the principle of legal definiteness, which means the need for definiteness, clarity and explicitness of legal norms. Moreover, in the President’s opinion, the law does not envisage effective mechanisms of taking account of comments and proposals from the public and executive authorities expressed in the course of consultations regarding state planning documents.
It is sad to read such conclusions of the Administration of the President. In our opinion, they point not to the drawbacks of the law but rather to the ignorance of officials from the Administration of the President in the topic, or even worse – to their prejudice and corruption.
The draft law on SEA was developed by outstanding Ukrainian and foreign lawyers and was supported by professional environmental organizations as well as by the Reanimation Package of Reforms.
We propose to you the Legal opinion of the Program “Greening Economies in the European Union’s Eastern Neighborhood” (“EaP GREEN”) that is a big regional program implemented by the United National Economic Commission for Europe (UNECE), OECD, UNEP and UNIDO and is aimed to assist six countries of the EU Eastern Partnership – Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine – to perform transition to “green” economy. One of the main components of the program is aimed to promote the application by these states of strategic environmental assessment (SEA) and environmental impact assessment (EIA) as the most important planning instruments for environmentally sustainable economic development.
The legal opinion regarding compatibility of the Law of Ukraine on strategic environmental assessment with the UNECE SEA Protocol and the EU SEA Directive was drafted and published by experts of EaP GREEN on 2 February 2017.
Although the experts found some minor drawbacks in the text of the law, their main conclusions are as follows:
- Generally the SEA law is compatible with international and EU requirements for SEA. It provides well elaborated provisions for screening, scoping, preparation of the SEA Report, public participation, consultations with environmental and health authorities and transboundary procedures. The respective provisions are sufficiently precise and comprehensive to meet requirements of the UNECE SEA Protocol and EU SEA Directive.
- The law is well drafted and comprehensive. It is internally coherent and – in line with the international standards – provides most of the detailed procedural requirements in the law itself.
- Generally, the SEA Law provides quite a developed legal framework, which seems to be assuring proper practical implementation of the respective SEA schemes as required by the UNECE SEA Protocol and EU SEA Directive and – if finally adopted – will provide an important step towards improvement of environmental protection and sustainable development as well as further democratization of the process of governmental decision-making in Ukraine. Full text of the Legal opinion can be accessed here.
Unfortunately, recently the parliamentarians made a decision not to continue the work on elaborating the SEA law taking into account proposals of the President of Ukraine as it is the case regarding EIA law. Thus, it will have to be submitted anew for the first reading, which means many months of legal work. Meanwhile, all state planning documents adopted by Ukraine without assessment of their impact on the environment and proper involvement of the public to the process of their development, are potentially subject to judicial challenge in Ukraine and can become the object of assessing Ukraine’s compliance with international obligations within relevant international institutions.
