USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
Energy Investment Activity (USAID EIA)
Contract Number AID-168-C-14-00002
Gap Analysis of Area of Environmental Protection in FBiH
Author: EIA Project Team
July, 2017
Implemented by: Advanced Engineering Associates International, Inc. (AEAI) USAID COR: Ankica Gavrilovic
This document is made possible by support from the American People sponsored by United States Agency for International Development (USAID). The contents of this document were prepared by and are the sole responsibility of Advanced Engineering Associates International, Inc., and do not necessarily reflect the views of USAID or the United States Government.
Contract Number AID-168-C-14-00002 1
USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
1. THE ENVIRONMENTAL PROTECTION SECTOR AND ENERGY INFRASTRUCTURE IN THE CONTEXT OF EUROPEAN INTEGRATION
1.1 Introduction
The environmental protection sector plays a very important role in the construction of power facilities. According to the findings of the EC Roland Berger Report,1 which analyzed permitting procedures for energy infrastructure projects in 13 EU member states, incompatibility of projects with environmental regulations was identified as one of the key causes for the delay or failure of energy infrastructure projects and was assessed as a medium risk factor among key challenges causing delays. Almost 80% of the documentation required for a permitting procedure is made up of documents and analyses related to environmental protection whose preparation usually requires two or more years.2
Regulation (EU) 347/2013 recognizes the important role that an environmental impact assessment (EIA) has in determining the duration of the procedure for constructing energy infrastructure.3 The Regulation, which sets up the framework for the construction of priority energy infrastructure in the EU, states that Member States should undertake legislative and non-legislative measures to streamline EIA procedures. To clarify these measures, in 2013, the European Commission issued the Guidance Document Streamlining environmental assessment procedures for energy infrastructure (Guidance Document)4 to support Member States in their efforts to improve and better coordinate the EIA procedure with a view to reducing unnecessary administrative burdens and speeding up the process while maintaining a maximum level of environmental protection.5
The EC Roland Berger Report and the European Commission Guidance Document provide recommendations for measures that Member States should apply in order to achieve the above goals. In particular, they underline the importance of measures to adopt and apply solutions from the EIA and SEA Directives6 in terms of organizing environmental permitting procedures and ensuring public
1 Roland Berger Strategy Consultants, “Permitting procedures for energy infrastructure projects in the EU: evaluation and legal recommendations,” Tender No. ENER/B1/452-2010, Final Report. European Commission Directorate-General for Energy, Berlin/Brussels, 31 July 2011, p. 22, available at url: https://ec.europa.eu/energy/sites/ener/files/documents/2011_ten_e_permitting_report.pdf. 2 Ibid., p. 43. 3 Regulation (EU) No. 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans- European energy infrastructure and repealing Decision No. 1364/2006/EC and amending Regulations (EC) No. 713/2009, (EC) No. 714/2009 and (EC) No. 715/2009 (Regulation (EU) 347/2013). 4 European Commission, 2013, Streamlining environmental assessment procedures for energy infrastructure Projects of Common Interest (PCIs), http://ec.europa.eu/environment/eia/pdf/PCI_guidance.pdf. 5 Ibid., p. 4. 6 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, amended by Directive 2014/52/EU (EIA Directive) and Directive 2001/42/EU of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programs on the environment (SEA Directive).
Contract Number AID-168-C-14-00002 2
USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
participation in early stages of the procedure. Although the primary objective of these measures is to speed up the construction of priority energy infrastructure in the EU, they are no doubt also applicable to the general permitting framework for all energy infrastructure projects.
By signing the Treaty establishing the Energy Community, which came into force in Bosnia and Herzegovina on 1 July 2006, Bosnia and Herzegovina became a member of the Energy Community and committed to adopting the acquis communautaire (European Union legislation) adapted to the institutional framework of the Contracting Parties in the following areas: energy, environment, competition and renewable energy sources. In terms of the environment, the Energy Community acquis comprises a total of 7 directives,7 including the above-mentioned EIA Directive and SEA Directive, whose implementation has been underscored as important for speeding up and streamlining the permitting procedure for energy infrastructure.
1.2. EIA Directive
The EIA Directive comprises two directives. The 2011 Directive contains the main text, while the 2014 Directive introduces certain amendments to the main text. The EIA Directive was adopted fully into the framework of the Energy Community in October 2016 by the Ministerial Council Decision D/2016/12/MC-EnC. This Decision obliges Bosnia and Herzegovina to implement the provisions of the main text of the 2011 Directive by 14 October 2016, and those of its 2014 amendments by 1 January 2019.
In terms of subject matter, the EIA Directive pertains to environmental impact assessments of public and private projects with potentially significant environmental effects. According to its provisions, Member States must adopt all measures necessary to ensure that, before consent is given for
7 The environmental acquis includes the following directives: a) Directive (EU) 2016/802 of the European Parliament and of the Council of 11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels and the Commission Implementing Decision (EU) 2015/253 of 16 February 2015 laying down the rules concerning the sampling and reporting under Council Directive 1999/32/EC as regards the sulphur content of marine fuels (deadline: 30 June 2018), Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, amended by Directive 2014/52/EU (deadline: 1 January 2019), b) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) – only Chapter III, Annex V, and Article 72(3)-(4) (deadline: 1 January 2018), c) Directive 2004/35/EU of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, amended by Directive 2006/21/EC, Directive 2009/31/EC, and Directive 2013/30/EU (deadline: 1 January 2021), d) Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants (deadline: 31 December 2017), e) Directive 2001/42/EU of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programs on the environment (deadline: 31 March 2018), f) Article 4(2) of the Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (deadline: 1 July 2006).
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
continuing a procedure, projects likely to have significant effects on the environment are made subject to a requirement for EIA and for obtaining special development consent.
The Directive determines two categories of projects:
1) projects subject to an EIA procedure (listed in Annex I of the Directive), 2) projects for which it is to be determined whether they shall be made subject to an EIA (listed in Annex II of the Directive).
The Directive establishes a framework for the environmental permitting procedure, and criteria for decision making in individual phases of the procedure are also clearly stipulated. This contributes to making the procedure uniform and organized and reduces room for the subjective interpretation of norms by employees in institutions and bodies responsible for issuing permits. Namely, these factors have been identified as key causes for differing durations of the environmental procedures in different cases.
The Directive defines (i) which projects will be automatically subject to an EIA, and (ii) for which projects the requirement of an EIA will be decided on a case-by-case basis or by thresholds/criteria set by the Member State. In addition, the Directive provides for other important criteria, such as:
a) the content and type of information to be provided by the developer for the purpose of deciding whether a project should be subject to an EIA (given in Annex II-A of the EIA Directive and including, inter alia, a description of the physical characteristics of the project, its location and the environment it is likely to impact based on currently available information), b) criteria to determine whether the project should be subject to an EIA (given in Annex III of the EIA Directive and including, inter alia, a description of the characteristics of the project – the overall size of the project, the use of natural resources, the production of waste, pollution and risks to human health; a description of the location – sensitivity of the geographical area, availability and quality of natural resources in the area; and a description of the environmental impact characteristics – size, nature and intensity of the impact, the cumulative impact together with other projects, the possibility of reducing the impact, etc.), and c) content of the EIA Report when such is required (given in Annex IV of the EIA Directive and including, inter alia, a description of the location and physical characteristics of the whole project, the main characteristics of the operational phase of the project, an estimate of expected emissions, a description of the alternatives studied by the developer, and a description of likely significant effects on the environment). An overview of the phases of the permitting procedure for a project is given in the diagram below:
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
Providing information •If the project is listed in Annex II and subject to a determination on whether it is necessary to conduct an EIA procedure, the developer (the developer provides the shall provide the competent authority with the information necessary information) for that determination as set out in Annex II-a.
•Projects subject to determination are listed in Annex II, and the Screening determination is based on criteria set out in Annex III. The (is an EIA necessary?) competent authority shall make the determination within 90 days.
•At the request of the developer, the competent authority shall Scoping issue an opinion on the scope and level of detail of the EIA (what should the Report contain?) Report to be submitted by the developer.
•The EIA Report shall contain the information set out in Annex EIA Report IV, including a non-technical summary in order to be (developer prepares the Report) understandable to the wider public.
Information and consultations •All competent authorities and the public concerned with the (consultations are held and the decision shall be consulted and the EIA Report shall be made available to them. Public consultations shall last for at least 30 public is informed) days.
Decision •Decision takes into account the EIA Report and consultations. (decision on whether to approve the The minimum content of the decision is determined by the implementation of the project) Directive. The Decision is made within a reasonable period of time.
Information about the decision •The public and all competent authorities shall be promptly (informing the public about the informed, and the decision shall be made available to the public. decision)
Monitoring •For projects with significant effects on the enviroment, (monitoring of implementation of developers must undertake measures to avoid, prevent and reduce negative effects. This process shall be monitored. measures)
Diagram 1 - Organization of an EIA procedure
The importance of the EIA Directive in terms of speeding up the procedure for constructing energy facilities is that it imposes a clear organization of an EIA procedure and provides clearly defined criteria for decision-making within that procedure. This reduces subjectivity in decision-making and enables timely information to the public and various stakeholders and their participation in the decision-making process.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
The next phase of the procedure – “scoping” – is particularly important. In this phase, at the very beginning of project implementation, the competent authority, at the request of the developer (investor), issues an opinion on the scope and level of detail of information to be included in the EIA report. This helps avoid a situation where the developer submits an EIA report (study) that does not contain elements necessary for the decision-making and must subsequently be supplemented. Environmental protection surveys can often only be carried out in certain seasons (e.g. because some species are not present in a certain area in all seasons or can only be observed in specific seasons),8 which is why supplanting the report can significantly delay realization of the project. In the interest of efficiency of the procedure, it is therefore very important that the developer carry out an EIA in line with criteria that are clear from the very start of the procedure.
Apart from organizing the procedure and introducing the scoping phase to determine the scope of the EIA, informing the public and stakeholders is particularly important for the construction of energy infrastructure and is also stipulated by the EIA Directive. Information is provided promptly, both before and after the decision is made, with public consultations lasting a minimum of 30 days when the public can also access the EIA Report.
Articles 6 and 7 of the EIA Directive define the involvement of competent authorities, the public concerned, the public and concerned Member States in the decision making process as follows:
a) competent authorities likely to be concerned by the project by reason of their specific environmental responsibilities – Member States designate these authorities either in general terms or on a case-by-case basis, b) the public concerned – the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures shall be informed by electronic media or public notices or other appropriate means as determined by Member States. c) the public – one or more natural or legal persons, their associations, organizations or groups shall be informed in a manner determined by the Member States, for example by bill posting within a certain radius or publication in local newspapers, etc. d) concerned Member States – Member States where a project is likely to have significant effects on the environment shall be sent information on the project and given a reasonable time to decide on whether to participate in the procedure. For the purposes of informing the public, in cases where a project is subject to an EIA, the developer shall also provide a non-technical summary of the report so that environmental information may be understood by persons without technical expertise. This significantly reduces the possibility for contesting projects in courts after a decision is made.
8 Roland Berger Strategy Consultants, op. cit., p. 43.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
The organization of the procedure stipulated by the EIA Directive is useful not only for environmental permitting. It offers many solutions, particularly the introduction of the scoping phase, which is one of the most important recommended measures for speeding up the overall procedure for the construction of energy infrastructure.
1.3. SEA Directive
The SEA Directive was adopted in 2001 and to be transposed into the legal frameworks of EU Member States by 2004. In October 2016, the SEA Directive was transposed into the framework of the Energy Community by the Ministerial Council Decision D/2016/13/MC-EnC. This decision obliges Bosnia and Herzegovina to bring its laws, regulations and administrative procedures in compliance with the provisions of the Directive and implement them by 31 March 2018.
The SEA Directive aims to ensure a high degree of environmental protection and contribute to including environmental protection issues into the phase of development and adoption of plans and programs. In contrast to the EIA Directive, which pertains to concrete effects of individual projects on the environment, the SEA Directive introduces the obligation to consider environmental effects at the level of strategic planning when plans and programs are being adopted.
This ensures that plans and programs with potential significant effects on the environment are made subject to “environmental assessment”9 at the earliest stage so that their potential effects on the environment can be taken into account. A strategic environmental assessment entails predicting and estimating the possible effects of plans and programs on the environment according to precisely defined criteria and information available at a given stage of the planning process. The information obtained through the strategic environmental assessment is taken into account when deciding on the adoption of plans and programs.
However, a strategic environmental assessment is not mandated for all types of plans and programs. The conditions set by the SEA Directive are a) that the plans and programs are subject to preparation and/or adoption by an authority at national, regional or local level or that they are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and b) that they are required by legislative, regulatory or administrative provisions.
The Directive defines two types of plans and programs:
9 The SEA Directive uses the term “environmental assessment,” but the term “strategic environmental assessment” is often used in various sources and will be used in this document to distinguish the a strategic environmental assessment from the environmental impact assessment used in the EIA directive.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
1) Plans and programs for which a strategic environmental assessment is required: all plans and programs which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use.
2) Plans and programs for which it is decided in each concrete case whether a strategic environmental assessment shall be carried out: those that entail the use of small areas at the local level and minor modifications to plans. The decision making criteria are set out in Annex II of the SEA Directive.
It is evident that plans and programs prepared for energy fall within the category subject to mandatory strategic environmental assessment, provided that the previous requirement is fulfilled, that they are adopted by a competent authority and that they are required by legislative, regulatory or administrative provisions.
Once it is determined that a plan or program is subject to a strategic environmental assessment, the following key steps in the strategic environmental assessment procedure are undertaken:
a) Preparation of an Environmental Report: likely significant effects on the environment of implementing the plan or program, and reasonable alternatives are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I. b) Carrying out consultations: entails consultations with authorities that have competences for environmental issues, representatives of the public, as well as consultations with other states (“transboundary consultations”) if the effects of the plan or program are likely to have impacts in their territory. c) Taking the findings into account: it is understood that the preparation and adoption of the plan or program shall take into account the environmental report, the results of the consultations and the opinions of states on transboundary effects.
One of the recommendations from the European Commission Guidance Document concerning the construction of energy infrastructure10 is to consider environmental effects at the earliest time possible. Accordingly, introducing strategic environmental assessment in the phase of developing national energy plans and policies is explicitly recommended. In this way, the environmental effects of energy infrastructure at the site of planned construction have already been taken into account in the planning process.
Conducting strategic environmental assessments reduces disputes in the implementation of projects, both in terms of their content and in terms of their overall acceptance by the public. Projects included in plans and programs for which strategic environmental assessment has already been carried out are
10 European Commission, 2013, op. cit., p. 17.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
easier to implement, given that a number of environmental issues will have been discussed and taken into account already. Finally, according to a number of studies and analyses,11 the application of this procedure has clear positive effects on reducing the costs and time needed to implement projects.
1.4. Regulation (EU) 347/2013
Regulation (EU) 347/2013 was adopted and incorporated into the legal framework of the Energy Community by a decision12 of the Ministerial Council in October 2015. Although its content places it within the infrastructure acquis, it also contains certain provisions significant for the environmental approval of construction projects. Even though Regulation (EU) 347/2013 is applicable only to the permitting procedure of large infrastructure projects of interest for the Energy Community (PECI projects), the application of the stipulated mechanisms to speed up and streamline the procedure for the construction of energy infrastructure and increase transparency of the procedure are recommended by the Energy Community Secretariat also for other procedures concerning the construction of energy infrastructure not designated as a PECI, in countries signatories of the Energy Community Treaty (signatories of the EnC Treaty), including provisions pertaining to environmental protection.
Article 7 of Regulation (EU) 347/2013 stipulates that projects of common interest for the signatories of the EnC Treaty shall be allocated the status of the highest national significance where such status exists in national law. Contracting Parties of the EnC Treaty shall, at their own discretion, adopt measures to streamline the environmental assessment procedures and inform the Energy Community Secretariat of such measures. In selecting the measures to be applied, Member States shall take into account the Guidance for streamlining environmental assessment procedures issued in 2013 by the European Commission, which includes a number of specific measures for streamlining procedures.
Measures that the EnC Treaty Contracting Parties can implement in line with their internal legal system without changing legislation (non-legislative measures) shall be applied by the end of July 2017; measures that require changes to legislation (legislative measures) shall be incorporated into the legal framework of the Contracting Party by the end of July 2018.
The Guidance Document defines a total of 6 specific measures for streamlining the permitting procedure for PECI projects: a) Early planning, “roadmapping” and scoping of assessments – due to the high degree of complexity of environmental assessment procedures for large energy infrastructure projects, it is
11Among the many excellent studies on the benefits of the SEA Directive are UNDP, Benefits of a Strategic Environmental Assessment, https://www.unece.org/fileadmin/DAM/env/eia/documents/SEAguides/Benefits_SEA_English.pdf; and The Scottish Government, Strategic Environmental Assessment Guidance, 2013, http://www.gov.scot/Resource/0043/00432344.pdf. 12 Energy Community Ministerial Council Decision No. 2015/09/MC-EnC, October 2015
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
crucial that all possible effects of a given project on the environment are considered and planned at the earliest possible time. It is necessary to plan the EIA procedure in an early phase, determining which aspect of the assessment will be carried out in each individual phase of the overall permitting process. This planning activity should be the main responsibility of the project promoter, in close cooperation with the competent authorities. b) Early integration of strategic environmental assessment and other environmental requirements – in addition to early planning and anticipation of likely environmental effects of individual projects, broader strategic environmental effects should also be considered at the earliest possible time. One strongly recommended measure is conducting a strategic environmental assessment during the preparation of planning and strategic documents in line with the SEA Directive, integrating a strategic environmental assessment procedure into the procedure for developing strategic documents. c) Procedural coordination and time limits – the cooperation of competent authorities in the permitting procedure for the construction of energy infrastructure is key for the speed of the EIA procedure. It is recommended that authorities of Contracting Parties responsible for approving PECI projects should have broad competences for coordinating the overall environmental procedure. The setting of clear deadlines for completing individual portions of the environmental procedure is also recommended. However, even though the primary objective of setting these deadlines is to speed up the procedure, they must be established objectively, so as not to affect the quality of the EIA itself. d) Data collection, data sharing and quality control – project promoters should start collecting information on potential environmental effects of the project as the earliest possible stage. Competent authorities must enable promoters’ access to all documents relevant to this procedure. Cooperation and exchange of environmental data among Contracting Parties is also recommended, as well as establishing a monitoring system to facilitate an overview of actual environmental impacts. It is also very important that the authorities and the promoters have access to external, independent experts with technical knowledge and expertise about the environment. e) Cross-border cooperation – the establishment of a cross-border cooperation mechanism between states is recommended, which can be established both formally through bilateral or multilateral agreements and informally or on an ad hoc basis. f) Early and effective public participation – early planning for an EIA should include planning for public participation in the permitting process. Pursuant to Article 9 of Regulation (EU) 347/2013, the project promoter or competent authority shall establish and regularly update a website with relevant information about the PECI project.
All of the above indicates that the Guidance Document contains the same recommendations as the EIA and SEA directives, since it is, in fact, based on them. This further underscores the importance
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
of implementing these directives and applying their mechanisms in permitting procedures for the construction of large infrastructure projects.
2. COMPETENCE FOR ENVIRONMENTAL REGULATION IN FBiH
Bosnia and Herzegovina does not have a law on environmental protection at the state level. Pursuant to the division of competences under Article III of the BiH Constitution,13 the environment does not fall within the competences of the institutions of BiH. Since, according to the Constitution of BiH, competences that are not expressly assigned to the institutions of BiH fall to the entities, this places environmental protection within the competences of the entities.
However, the Law on Ministries and Other Bodies of Administration of BiH14 assigns certain environmental protection competences to the Ministry of Foreign Trade and Economic Relations (MOFTER). Article 9 of this Law reads:
“This Ministry shall also be responsible for carrying out tasks and discharging duties that are within the competence of BiH and relate to defining policy, basic principles, coordinating activities and harmonizing plans of the Entity authorities and bodies at the international level in the fields of: - agriculture; - energy; - protection of the environment, development and use of natural resources; - tourism.”
Within the organizational structure of MOFTER, environmental protection is the responsibility of the Sector for Water Resources, Tourism and Environmental Protection, which has a separate Environmental Protection Department.
Based on current entity laws on environmental protection,15 where cooperation between the entities is regulated by identical provisions, the Inter-Entity Body for Environmental Protection (Inter-Entity Body) was established in 2006 by decisions of the FBiH Government and the RS Government. Articles 112 and 113 of the FBiH Law on Environmental Protection read:
“Article 112
13 Constitution of Bosnia and Herzegovina, Sarajevo, OHR, Office of the High Representative, http://www.ustavnisud.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_hrv.pdf 14 Law on Ministries and Other Bodies of Administration of BiH (Official Gazette of BiH, Nos. 5/03, 42/03, 26/04, 42/04, 45/06, 88/07, 35/09, 59/09, 103/09, 87/12, 6/13 and 19/16). 15 Law on Environmental Protection (“Official Gazette of FBiH,” Nos. 33/03 and 38/09) and the Law on Environmental Protection (“Official Gazette of Republika Srpska,” No. 71/12).
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
An Inter-Entity Environmental Body shall be set up by the joint decisions of the Government of FBiH and the Government of Republika Srpska.
Article 113
The Inter-Entity Environmental Body shall deal with all issues related to the environment that require a harmonized approach of the Entities, as well as other issues referred to the Inter-Entity Environmental Body by this Law and other regulations, and in particular:
- international treaties and programs concerning environmental matters; - cooperation with international organizations and foreign states; - coordination and implementation of existing and future environmental legislation and regulations; - coordination and monitoring of environmental standards and procedures; - provision of recommendations for setting of environmental quality standards at the entity level; - coordination of entity environmental action plans and other environmental plans and programs; - coordination of environmental monitoring and information systems; and - information collection and exchange.
The Inter-Entity Environmental Body shall provide expert assistance to competent entity ministries.
The Inter-Entity Environmental Body shall ensure that the interests of both entities are taken into account in connection with the planning of projects, particularly when differing interests regarding the use of the environment are weighed against one- another in areas cut across by the inter-entity boundary line.”
According to the provisions of both entity laws, the Inter-Entity Body shall deal with issues of international treaties and programs concerning environmental matters, cooperation with international organizations and other countries, coordination and implementation of existing and new laws and regulations, coordination of the monitoring and information systems, collection and exchange of information, as well as other matters that require a harmonized approach by both entities.
The establishment of the Inter-Entity Body under entity laws to deal with issues that exceed the jurisdiction of just one entity, along with defining its competences in a way that can be interpreted as
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
overlapping with the competences of MOFTER’s Department for Environmental Protection, established under state law, is a questionable model for resolving issues in the environmental sector and dealing with issues that arise from BiH international obligations. Besides the questionability of the legal grounds for giving competences defined by Article 113 to this body, which is an issue that must be clarified by institutions competent for interpretation of the BiH Constitution and laws, some other questions also arise, like the efficiency of this body and the availability of mechanisms that will enable it to execute the tasks given to this body in practice. One issue is of special importance: the issue of inter-entity and inter-state coordination and cooperation, which by its nature and according to the BiH Constitution falls within the competences of state institutions, and in relation to environmental protection specifically, within the competences of the MOFTER Department for Environmental Protection. The Inter-Entity Body was established prior to the MOFTER Department for Environmental Protection. In accordance with the Decisions of entity Governments, it comprises a total of eight members, four appointed from each entity. The Inter-Entity Body should meet at least six times a year. The Brčko District of BiH is not represented within the Body. In general, very little information is available about the work and activities of the Inter-Entity Environmental Body. This Body does not have an official website, and the websites of competent entity ministries contain only modest information about its sessions.
The Inter-Entity Body was involved in relation to the construction of HPP Dabar on the Neretva and Trebišnjica Rivers. Within these activities, the Inter-Entity Body issued a conclusion that in the process of evaluation of the Environmental Impact Study for this project, the RS Ministry for Spatial Planning, Civil Engineering and Ecology should forward the Study to the Federation Ministry Of Environment and Tourism and the Ministry of Environmental and Nature Protection of the Republic of Croatia and seek expert opinions on the transboundary effects of this project.16 Inclusion of a separate chapter in an EIA Study that evaluates possible effects on the environment of another entity or state, is also mandatory according to both entity laws on environmental protection; however, further along in the process, the RS Ministry for Spatial Planning, Civil Engineering and Ecology approved the Environmental Impact Study for the HPP Dabar project even though it did not contain a chapter on its effects on FBiH or its transboundary effects on the Republic of Croatia. This is why FMOIT challenged the Study and initiated an administrative dispute at the District Court in Banja Luka.17
The Environmental Performance Review for Bosnia and Herzegovina18 by the United Nations Economic Commission for Europe states that the Inter-Entity Body “has had limited impact in raising environmental issues to the State level and in ensuring the necessary level of vertical and horizontal
16 Federal Ministry of Environment and Tourism, Press Release from the session of the Inter-Entity Environmental Body, 27 April 2012, available at url: http://www.fmoit.gov.ba/ba/%20clanak/%20731/odrana-28-sjednica- meuentitetskog-tijela-za-okoliscaron. 17 Federation Ministry of Environment and Tourism, News, 12 September 2012, available at url: http://www.fmoit.gov.ba/ba/clanak/778/. 18 United Nations Economic Commission for Europe, Environmental Performance Review – Bosnia and Herzegovina, 2011, New York and Geneva, available at url: http://www.bhas.ba/dokumenti/EPR_2_001_01-bh.pdf.
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
coordination and communication. This is in part because the Committee [Inter-Entity Body] does not have a legal basis for its existence.” The Review also states that the participation of non-governmental organizations in the work of the Inter-Entity Body is at a low level, given that they are not involved in its work,19 and “because of weak inter-entity coordination mechanisms, legislative and administrative procedures are slow and redundant.”20
In line with the division of competences under the FBiH Constitution, the Federation government and cantons are responsible for “environmental policy.”21 According to the provisions of the FBiH Constitution, these competences may be executed jointly or separately, or by the cantons as coordinated by the Federation government, in which case they shall be subject to ongoing consultations between the cantons and the federal government.
In practice, in line with the division of competences for environmental protection, both the Federation and cantonal levels of government have adopted their own sets of laws and bylaws determining the permitting procedure for power infrastructure facilities.
3. LEGAL FRAMEWORK AT THE FBiH LEVEL
3.1. Federation of BiH Law and Rulebook
The legal framework at the level of the Federation of BiH is determined by the FBiH Law on Environmental Protection adopted in 2003 and amended in 2009. The FBiH Law on Environmental Protection determines, inter alia, the preservation, protection, restoration and improvement of the ecological quality and capacity of the environment, the measures and conditions for the management, preservation and rational use of natural resources, and the legal measures and institutions for the preservation, protection and improvement of environmental protection.
Principles:
Chapter III of the FBiH Law on Environmental Protection sets out the principles of environmental protection as follows: a) The Principle of Sustainable Development, b) The Principle of Precaution and Prevention, c) The Principle of Substitution, d) The Principle of Integration, e) The Principle of Cooperation and Shared Responsibility, f) Public Participation and Access to Information, and g) The Polluter Pays Principle. 22
Competence for issuing environmental permits:
19 Ibid., p. 41. 20 Ibid., p. 3. 21 Chapter III, Constitution of the Federation of Bosnia and Herzegovina, http://www.ustavnisudfbih.ba/bs/dokumenti/ustav_precisceni_tekst.pdf. 22 Articles 5-10 of the FBiH Law on Environmental Protection (“Official Gazette of FBiH,” Nos. 33/03 and 38/09).
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The FBiH Law on Environmental Protection23 stipulates that environmental permits will be issued by the Federation and cantonal ministries in line with their competences. The Rulebook on Industrial Plants and Installation,24 which requires environmental impact assessments and designates plants and installations that may be built and put into operation only if they obtain an environmental permit (Rulebook on Plants and Installations) determines the plants and installations and thresholds within the competences of FMOIT as follows:
a) plants and installations for which FMOIT shall conduct an EIA, b) plants and installations for which FMOIT shall decide whether it is necessary to conduct an EIA, c) plants and installations for which an EIA shall not be mandatory and which may be put into operation only if they obtain an environmental permit issued by FMOIT, and d) plants and installations that entail a risk of larger-scale malfunctions and for which FMOIT issues environmental permits. The types of power installations and thresholds of competence are shown in the Attachment 1 to this analysis.
The Rulebook on Industrial Plants and Installations also defines the contents of an EIA Study and the criteria for determining the necessity to conduct an EIA.
The competent cantonal ministry issues environmental permits for plants below the threshold determined by this Rulebook and for Plants and Installations that do not require an EIA.
FMOIT must conduct EIAs and is responsible, inter alia, for issuing environmental permits for the following power facilities: a) hydropower plants with output over 5MW for individual plants or over 2MW for a series of installations over a distance of less than 2 kilometers, b) thermal power plants with heat output of 50MW and above, c) construction of overhead power lines with 110kV voltage (if they are part of the transmission system) and 220 kV and above, and d) nuclear power plants.
Due to the cumulative environmental effects of a series of smaller installations constructed over a short distance, FMOIT is responsible for hydro power plants with output of “over 2MW for a series of plants adjacent to each other over a distance of less than 2 km.” This provision is imprecise, because it is unclear what the formulation “series of plants” refers to, i.e., whether the legislator means two or more plants. Also imprecise is the formulation “over a distance of less than 2 km” since it is unclear how this distance is to be measured (whether all facilities must be within a distance of 2 kilometers with their total area and auxiliary facilities or whether only part of the facility must to be within this distance).
23 Chapter VII – Competence, Articles 42 and 43. 24 The Rulebook on Industrial Plants and Installation (“Official Gazette of FBiH,” No. 19/04).
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Apart from the above installations, FMOIT is also responsible for issuing environmental permits for hydropower plants with output over 1MW and wind power plants with 2MW capacity or 4 converters. When it comes to the construction of such installations, FMOIT decides in each specific case whether to conduct an EIA, taking into account the decision-making criteria given in the Rulebook on Plants and Installations. The Rulebook does not contain provisions that define competences for issuing environmental permits for the construction of solar or biomass power plants. A more detailed overview of the division of competences and thresholds stipulated in the Rulebook is given in a table in Attachment 1 to this analysis. In line with the provisions of the FBiH Law on Environmental Protection, the deadline for issuing an environmental permit is 120 days from the date of application; and in cases when an EIA is required, it is 60 days from the date of submission of the Environmental Impact Study.
Article 68 of the FBiH Law on Environmental Protection stipulates that “the competent ministry shall update the environmental permit every five years.” The term “update” implies a new procedure, but the law does not define its content. The term “update” may indicate the procedure of regular renewal of the environmental permit commonly carried out at regular time intervals, but it may also mean a review and possible change to the environmental permit in a procedure conducted as needed or at the request of interested parties.
Organization of the procedure in the context of recommendations from the EIA and SEA Directives and the requirements of Regulation (EU) 347/2013:
The FBiH Law on Environmental Protection is partially aligned with the EIA Directive when it comes to the organization of the procedure. Article 54 of this Law stipulates the following: “The competent authority shall not issue an urban permit or other necessary permits for projects requiring an environmental impact assessment unless an environmental permit is attached to the application.” This provision fulfils the main requirement from the EIA Directive, which stipulates that projects that may have significant environmental effects must be subject to a mandatory EIA and must obtain a special environmental permit. Furthermore, Article 57 of the FBiH Law on Environmental Protection stipulates that the EIA procedure must be divided into two phases:
“a) Prior environmental impact assessment, and
b) Environmental impact study.”
This legal formulation for dividing the procedure into two phases is insufficiently clear, although it may be assumed that b) refers to the phase of an environmental impact assessment, which includes preparing an environmental impact study as its integral part. The FBiH Law on Environmental Protection sets out the EIA procedure in an unsystematic and insufficiently organized manner, so that it is difficult to identify all the required steps and their sequence.
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Finally, the FBiH Law on Environmental Protection does not contain provisions that define determining the scope of the EIA (Scoping) as a separate phase, which is one of the strongly recommended measures to speed up the procedure for the construction of energy infrastructure.
When it comes to the SEA Directive, the FBiH Law on Environmental Protection has introduced the obligation to conduct “strategic environmental assessment,” but it contains only two articles (Articles 51 and 52) that regulate this procedure. Initially, the Law did not even contain the definition of what is subject to a strategic environmental assessment and it only pertained to spatial planning documents and economic regulations. The changes and amendments to the Law adopted in 2009 made the provisions of the above two articles more precise, introducing the definition of strategic environmental assessment and its content, which had been missing, as well as provisions on competences. However, the Law still does not contain clear provisions on a host of other issues related to the strategic assessment procedure, such as public participation, obtaining opinions from interested parties, adoption of the report, and the manner and procedure for conducting the strategic environmental assessment, or individual criteria for decision-making. Compared to the Directive that prescribes the obligation to conduct strategic environmental assessment for plans and programs in EU Member States, the FBiH Law on Environmental Protection expanded this obligation to include strategies, which is certainly a positive step.
When it comes to transboundary environmental effects, Article 63 of the FBiH Law on Environmental Protection stipulates that the party responsible for producing the environmental impact study shall devote a separate chapter in the study to information on possible effects on the environment of another state. FMOIT is also obliged to submit this chapter to the concerned state or entity, and to enable the participation of public representatives and conduct consultations with their representatives.
Appeal Procedure
The appeal procedure for the decisions of administrative institutions in the area of environmental protection in FBiH is not harmonized; the procedure depends on whether the competent administrative authority is conducting the proceedings in accordance with the FBiH Law on Environmental Protection or the cantonal law on environmental protection.
Article 42 of the FBiH Law on Environmental Protection states that FMOIT “decides on the appeals on the decisions adopted by the cantonal ministries based on the FBiH Law and other Federation regulations and performs duties and other environmental protection tasks within the jurisdiction of the FBiH.” In accordance with this article, FMOIT is the appeal authority in the procedure in cantons that apply the FBiH Law on Environmental Protection and adopt decisions based on this Law.
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However, in the cantons that have adopted and apply their own cantonal laws on environmental protection, the appeal procedure is conducted in accordance with the FBiH Law on Administrative Procedure,25 which states:
“Article 222, paragraph (2)
The right to appeal the first instance decision of the cantonal administrative authorities and institutions, which is adopted on the basis of cantonal laws, is defined by the cantonal laws from the relevant administrative area. [...] Article 224, paragraph (1)
An appeal of the first instance decisions of the cantonal administrative authorities and institutions that are adopted on the basis of cantonal laws and regulations is resolved by the competent cantonal authority designated by cantonal law.”
According to these provisions, cantons that apply their own laws on environmental protection decide which authority has the competence in the appeal procedure of the decision of the cantonal administrative institutions, and typically this competence is given to the cantonal government. However, there are also cases when a cantonal law on environmental protection stipulates that the FMOIT has the competence over the appeal procedure,26 so generally the following situations may occur in the appeal procedure in FBiH:
a) A decision was adopted by FMOIT based on the FBiH Law on Environmental Protection – FMOIT is the appeal authority in the procedure, b) A decision was adopted by a cantonal ministry based on the FBiH Law on Environmental Protection – FMOIT is the appeal authority in the procedure, c) A decision was adopted by a cantonal ministry based on the cantonal law on environmental protection – cantonal government is the appeal authority in the procedure, d) A decision was adopted by a cantonal ministry based on the cantonal law on environmental protection – FMOIT is the appeal authority in the procedure. Therefore it is evident that there is no harmonization in this matter between FBiH and cantonal levels of government or between cantons on the same level of government. The fact that FMOIT has the competence over the appeal procedure in some cantons, and in others this competence is given to the cantonal governments, causes unequal positions of the investors in the permitting process in different cantons.
25 FBiH Law on Administrative Procedure ('Official Gazette of the FBiH,“ Nos. 2/98 and 48/99.) 26 In the Central Bosnia Canton (CBC), which applies cantonal law on environmental protection, FMOIT is designated as the second instance appeal authority in the procedure.
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3.2. 2017 Draft FBiH Law on Environmental Protection
The new Draft FBiH Law on Environmental Protection was accepted at the session of the House of Representatives (in June, 2014) and the House of Peoples (in May, 2016) of the FBiH Parliament, and the proposer was tasked with organizing public discussions on the Draft Law and incorporating comments from the public discussions into its text.
In April 2016, FMOIT adopted a Decision to form the Working Group responsible for analyzing the current situation and problems in the environmental sector and finding possible solutions. According to the findings of this Working Group,27 the key problems in the environmental sector are “an inadequate and inefficient system of coordination of institutions and high administrative obstacles in the permitting procedure in FBiH.” The main problems identified in the report are given in the table below:
1. 2. 3. Noncompliance of Volume and non-compliance of Inadequate staff capacity legislation with domestic documentation and length of of the ministry for issuing and international permitting procedure environmental permits regulations
1.1. 2.1. Lack of coordinated Lack of coordination between 3.1. implementation of BiH’s sector ministries related to Insufficient number of civil international commitments documentation required for the servants assigned to issuing related to environmental permitting procedure environmental permits protection
27The findings are presented in the document Report on Expedited Regulatory Impact Assessment from December 2017, which is in line with the Regulation on the Procedure for the Assessment of Regulatory Impact of the Government of FBiH from 2014, http://www.fbihvlada.gov.ba/bosanski/zakoni/2014/uredbe/26.htm.
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1.2. 2.2. Discrepancies in the existing 3.2. Inadequate monitoring, evaluation legislative-legal framework Inadequate IT capacities and reporting mechanisms and and practice related to instruments related to issuing issuing environmental environmental permits permits at the level of the
Federation of BiH and that
of the cantons
Table 1 - Key problems in the environmental sector as shown in the Report on Expedited Regulatory Impact Assessment. The findings issuing from the analysis conducted by the Working Group, as well as from public consultations and consultative meetings have mostly been incorporated into the updated Draft FBiH Law on Environmental Protection and published on the FMOIT website in February 2017.28
Organization of the procedure in the context of recommendations from the EIA and SEA Directives and the requirements of Regulation (EU) 347/2013:
The 2017 Draft FBiH Law on Environmental Protection (Draft Law) is in compliance with the requirements of the EIA Directive. When it comes to the organization of an EIA procedure, which is, as previously stated, very important for the construction of energy infrastructure, the Draft Law contains a clear definition of the phases in the procedure as follows:
1) pre-assessment procedure, including decisions on: - the requirement to conduct an EIA, - the scope of the EIA if it is required, and 2) the procedure for an EIA.
The first phase includes clearly defined procedures for deciding on the requirement for conducting and EIA (screening), and deciding on the scope of the EIA (scoping).
Competent authorities, administrative authorities and organizations responsible for environmental protection are involved already at the stage of the pre-EIA in that they submit opinions that FMOIT must take into account when deciding on whether an EIA procedure shall be required. The criteria for this decision are defined in the implementing regulation. The contents of the EIA shall also be
28 FMOIT, Draft Law on Environmental Protection, 2017, http://www.fmoit.gov.ba/ba/clanak/1456/nacrt-zakona-o- zascarontiti-okoliscarona-federacije-bih
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determined by a special regulation, and the Law stipulates that the EIA shall include possible transboundary effects of the project.
The phases of the procedure are clearly defined and titled, and presented in chronological order as follows: initiation of the procedure, inclusion of competent authorities, local self-governance units, organizations and other parties in the earliest phase of the procedure, the conduct of the EIA, production of the EIA, public debates, evaluation and approval of the EIA and consideration of transboundary effects.
It should be noted that the Draft Law also contains provisions on the regular renewal of the environmental permit that had been lacking previously. This procedure will also be regulated in detail by a special regulation.
Although the compliance of the Draft Law with the EIA Directive depends to a large extent and directly on bylaws that must be adopted once the Law is passed and that will determine individual criteria, in terms of the organization of the procedure, the Draft Law has a high degree of compliance with the EIA Directive. When it comes to energy infrastructure, clearly defining competences through subsequent special regulations is of paramount importance.
The Draft FBiH Law on Environmental Protection also fully transposes the provisions of the SEA Directive in Articles 48 through 63. The requirement to conduct “Strategic environmental impact assessment”29 is introduced for all strategies, plans, and programs that establish the framework for approving projects in various areas in line with the Directive, including energy.
The procedure for strategic environmental impact assessment is divided into phases:
The phases in the assessment are as follows:
a) Decision on the requirement to conduct strategic assessment, b) Determination of the scope and content of the strategic study, c) Evaluation of the strategic study by the advisory expert commission, d) Consultations on the draft strategy, plan and program, and strategic study, e) Evaluation of the draft strategy, plan and program, and strategic study, f) Adoption of the report by the competent authority responsible for preparing the strategy, plan and program.
Each of the phases is explained in further detail, while the criteria to decide on the requirement for a strategic assessment and its contents must be determined by a regulation of the FBiH Government.
29 The Draft Law employs the term “strategic environmental impact assessment” or the shorter term “strategic assessment.”
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Much like the EIA Directive, compliance in relation to individual criteria depends on the content of the secondary legislation to be adopted once the Law is passed. Nevertheless, the procedure itself is defined more clearly and contains elements prescribed by the Directive.
Although a Department for Environmental Protection has been established at MOFTER with competences pursuant to the state-level law for inter-entity and inter-state issues, including inter- entity and inter-state coordination and cooperation, the Draft Law again foresees that inter-entity cooperation should be conducted via an Inter-Entity Body established by decisions of the FBiH Government, RS Government, Brčko District of BiH Government and the Council of Ministers of BiH. According to the proposed Article 125 of the Draft Law, in addition to four representatives from RS and four representatives from FBiH, the work of this Body should also include two representatives of the Brčko District of BiH. According to this proposal, the Body would only be obliged to inform MOFTER of its meetings.
Appeal Procedure
Article 90 of the Draft FBiH Law on Environmental Protection defines which authorities have the competence for the environmental permitting appeal procedure. According to this article, it is not possible to lodge an appeal against a decision adopted by FMOIT, but it is possible to initiate an administrative dispute procedure in front of the competent court. Appeals on the decisions adopted by cantonal authorities are allowed and can be submitted to FMOIT as a second instance authority in the procedure.
The adoption of such article, according to which the competent authority in the appeal procedure would be the same in all cantons, would have positive effects on the equal status of investors in the permitting process in front of different cantons and the harmonization of the permitting practice in general.
4. LEGAL FRAMEWORK IN THE CANTONS
This chapter of the environmental protection sector analysis compares and analyzes the environmental regulations in four selected “pilot” cantons: the Tuzla Canton (TC), the Zenica-Doboj Canton (ZDC), the Central Bosnia Canton (CBC), and the Herzegovina-Neretva Canton (HNC). As in the other chapters, the analysis focuses on issues of particular relevance for the construction of power infrastructure.
The main characteristic of the legal framework at this level of government is that some cantons have adopted and apply their own environmental protection legislation, while others apply the FBiH Law
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on Environmental Protection.30 Thus, of the four selected “pilot” cantons, TC and ZDC apply the FBiH Law on Environmental Protection, while CBC and HNC apply cantonal environmental protection laws.31 In addition, each of the four analyzed cantons applies its own rulebook on plants and installations that determines which facilities can be put into operation only if an environmental permit is issued by the competent cantonal ministry.
The cantonal environmental protection laws applicable in CBC and HNC were adopted following the adoption of the Federation law; they have a similar structure with separate chapters for, e.g., general provisions, definitions, principles, protection of environmental components, information, competences. However, the cantonal-level laws are not uniform, and each contains some specificities.
Central Bosnia Canton
The specificity of the CBC Law on Environmental Protection is that it expands competences for issuing environmental permits to municipal levels of government, as effected by Article 25 of the Cantonal Law which reads:
“Article 25 The municipal service competent for the environment: (...) 2. issues environmental permits from within its competences (...)”
This Article is contrary to Articles 40, 42, and 43 of the FBiH Law on Environmental Protection which define competences and stipulate that competences for issuing environmental permits reside with the Federation of BiH and the cantons. As per these provisions of the Cantonal Law and provisions of the CBC Canton Rulebook on plants and installations,32 competent municipal “services shall issue permits for plants and installations below the thresholds stipulated in the cantonal rulebook, or for those listed in the rulebook that may have negative environmental effects.” This also includes installations with emissions above common household emission levels. This kind of solution is not included in any of the other cantonal laws covered by this analysis.
Given that competences in CBC exist both at the municipal and cantonal levels, the appeals procedure can also be conducted at two levels of government, namely, before the Federation and Cantonal
30 A total of five cantons in FBiH have adopted and apply their own environmental protection laws: the Posavina Canton, the Bosnian Podrinje Canton, the Central Bosnia Canton, the Western Herzegovina Canton and the Herzegovina-Neretva Canton. 31 CBC Law on Environmental Protection (“Official Gazette of CBC,” No. 4/05) and the HNC Law on Environmental Protection (“Official Gazette of HNC,” No. 6/12). 32 Rulebook on plants and installations that may be constructed and put into operation only if they obtain an environmental permit (“Official Gazette of CBC,” No. 05/06).
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ministry responsible for environmental protection. The CBC Rulebook on plants and installations defines a total of seven types of energy plants and installations, including combustion plants, hydropower plants and wind power plants. The CBC Rulebook does not contain provisions on solar plants, biomass installations (and neither does the FBiH Rulebook on plants and installations) or provisions defining competences for the construction of overhead power lines.
When it comes to the deadline for issuing an environmental permit, according to Article 38 of the CBC Law on Environmental Protection, the competent body must issue the environmental permit within 60 days from the date of application. The deadline for issuing environmental permits in this canton is more favorable for investors than the 120-day deadline stipulated in the FBiH Law on Environmental Protection.
Herzegovina-Neretva Canton
The HNC has adopted a cantonal Law on Environmental Protection. According to Article 37 of the HNC Law on Environmental Protection, an appeal against a decision of the cantonal ministry on issuing an environmental permit may be lodged with the Government of the Herzegovina-Neretva Canton. Therefore, the appeal procedure in this canton is different than the appeal procedure in cantons that apply the FBiH Law on Environmental Protection, where FMOIT is the second instance authority in this procedure.
The HNC Rulebook on plants and installations33 lists a total of 10 types of energy plants and installations that may be put into operation only if they obtain an environmental permit issued by the cantonal authority. In addition to combustion plants, hydropower plants and wind power plants, this Rulebook also includes solar power plants and the construction of overhead power lines.
The deadline for the issuance of an environmental permit in HNC is 90 days from the date of application. As in the case of CBC, this deadline is shorter than the one defined in the Federation Law.
Tuzla Canton
The Tuzla Canton applies the FBiH Law on Environmental Protection and the cantonal Rulebook on Plants and Installations.34 As per the Rulebook, the procedure for issuing an environmental permit is required for a total of eight types of energy plants and installations. Combustion plants, hydropower plants, wind power plants and the construction of overhead power lines are included among the listed
33 Rulebook on Plants and Installations that May Be Constructed and Put into Operation Only if They Obtain an Environmental Permit (“Official Gazette of HNC,” No. 10/12). 34 Rulebook on Issuing Environmental Permits for Plants and Installations and Other Planned Activities that May Have Significant Environmental Effects (“Official Gazette of TC,” Nos. 3/05 and 9/07).
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plants and installations, but this is rulebook does not contain provisions on solar or biomass installations.
Zenica-Doboj Canton
The Zenica-Doboj Canton also applies the FBiH Law on Environmental Protection and the cantonal Rulebook on Plants and Installations.35 The Rulebook lists a total of six types of power plants and installations for which the cantonal ministry issues environmental permits. Combustion plants, hydro power plants and wind power plants are defined in the Rulebook, but solar installations, biomass installations and the construction of overhead power lines are not.
A comparison of the provisions of the laws and rulebooks in the four selected cantons, particularly relevant for the permitting process and approval of construction of energy infrastructure facilities, is given in a table in Attachment 1 to this analysis.
5. CONCLUSIONS
• The lack of institutional coordination in environmental protection at the state level is an obstacle for the implementation of larger-scale infrastructure projects whose EIA requires inter-entity or inter-state coordination and cooperation. It was precisely this lack of coordination between competent sector ministries in the entities when it comes to the documentation for issuing the required permits, as well as the absence of adequate monitoring, evaluation and reporting mechanisms and instruments for environmental permitting that were identified as key problems in Table 136 on the Report on Expedited Regulatory Impact Assessment shown in this analysis.
• The model of the Inter-Entity Body that has been selected by the entities for the realization of inter-entity and international cooperation is insufficient. Whereas representatives of FMOIT have stated that the Inter-Entity Body has had a very limited role to only provide expert and consulting opinions, in fact, this body has had a significant role in the identification of problems, sharing of information during expert discussions in the environmental sector, especially in the period when the MOFTER Department for Environmental Protection did not exist. However, it is extremely important that competences and responsibilities in this system are clearly defined, especially since there are numerous levels of government with competences related to environmental protection in BiH. Particularly since Bosnia and Herzegovina is on the path to become an EU Member State, it is important that the legal framework of environmental laws and regulations be as coordinated and clear as possible, especially given the breadth and detail of the EU Directives on the environment.
35 Rulebook on Plants and Installations that May Be Constructed and Put into Operation Only if They Obtain an Environmental Permit (“Official Gazette of ZDC,” No. 14/13). 36 See, p.18.
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The proposed new Draft FBiH Law on Environmental Protection must also be reviewed in this context, because as written, it gives itself (as an entity-level law) the legal basis for the decision- making of both the Brčko District of BiH Government and the Council of Ministers of BiH in matters of coordination and cooperation both between different levels of government in BiH and with other states and international organizations. The proposed model is particularly unconducive to the implementation of PECI projects in BiH and the transposition into the BiH legal framework of provisions of Regulation (EU) 347/2013 pertaining to environmental protection and the efficient operation of the competent state coordination body for PECI projects that BiH is obliged to establish as per the requirements set out in this Regulation.
• The current FBiH Law on Environmental Protection does not fully comply with the requirements of the EIA and SEA Directives relevant to the permitting procedure and having positive effects on speeding up the procedure for the construction of energy infrastructure facilities, in particular:
o it does not contain provisions that define a separate phase of the permitting procedure for determining the scope of environmental impact assessment (Scoping), which is one of the obligations under the EIA Directive; and
o it does not contain precisely defined provisions on the procedure for conducting a strategic environmental assessment, public participation in the procedure, obtaining opinions from interested parties, adoption of the report, or decision-making criteria, which are obligations under the SEA Directive.
• The current FBiH Law on Environmental Protection does not distinguish or sufficiently precisely define the procedure of regular periodic renewal of environmental permits and the review procedure conducted at the request of an interested party.
• The FBiH Rulebook on Plants and Installations does not require environmental permits for biomass or solar energy power generation facilities. The cantonal rulebooks on plants and installations covered by this analysis also fail to define all relevant kinds and types of power installations running on renewable energy sources.
• Some cantons apply their own environmental protection laws (HNC and CBC), while other cantons (TC and ZDC) apply the FBiH Law on Environmental Protection. The FBiH Law on Environmental Protection and cantonal environmental protection laws covered by this analysis contain differing solutions with respect to deadlines, competences and the appeal procedure:
o Deadlines in HNC and CBC differ from deadlines stipulated in the FBiH Law on Environmental Protection, but, being shorter, are more favorable for investors.
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o In CBC, the competence for issuing environmental permits exists also on the municipal level, which is contrary to the FBiH Law on Environmental Protection.
o In HNC, the HNC Government decides appeals, and an appeal decision may be contested through administrative proceedings at the competent cantonal court. The appeal procedure in this canton is different than the appeal procedure in the other three cantons analyzed in this report, two of which apply the FBiH Law on Environmental Protection (TC and ZDC) and one applies cantonal law on environmental protection (SBK.) In these three cantons FMOIT has the competence to decide the appeals of first instance decisions.
• The websites of the competent cantonal ministries are often not updated or do not contain clearly published laws and bylaws with all subsequent changes and amendments. • The 2017 new Draft FBiH Law on Environmental Protection contains better solutions that more clearly and precisely define the environmental permitting procedure compared to the current FBiH Law on Environmental Protection. According to the text of the new Draft Law, all phases of the procedure are clearly defined and titled, and presented in chronological order as follows: initiation of procedure, inclusion of competent authorities, local self-governance units, organizations and other parties in the earliest phase of the procedure, conducting an environmental impact assessment, development of an environmental impact study, public debates, evaluation and approval of the study and consideration of transboundary effects. The new Draft Law contains measures recommended to speed up the procedure for constructing energy infrastructure, including the early planning phase and scoping, and it also defines the strategic environmental assessment procedure for strategies, programs and plans. However, the Draft Law still contains questionable provisions on the Inter-Entity Body (Article 125) that overlap with the competences of the MOFTER Department for Environmental Protection, so it is necessary to resolve this issue in order to remove legal norms that may impact the functionality, efficiency and accountability in the environmental protection system in BiH.
6. RECOMMENDATIONS
• Coordination of environmental protection needs to be institutionalized at the state level within the MOFTER Department responsible for the environment in order to enable coordination and cooperation of competent entity sector ministries in issuing the necessary permits for projects that have environmental effects in the other entity or in neighboring states. It is also necessary to establish monitoring, evaluation and reporting mechanisms and instruments for environmental protection at the state level. This is particularly important for the implementation of PECI projects given that the Guidance Document: Streamlining Environmental Assessment Procedures issued by the European Commission with respect to the implementation of these projects recommends that state bodies responsible for coordinating the implementation of PECI projects in signatory countries of the EC Treaty have an important role in coordinating environmental permitting and conducing public
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consultations in cooperation with competent entity ministries and responsible authorities in neighboring states.
• Adoption of a regulation at the BiH level, which would clearly define the competences and responsibilities of all stakeholders in the area of environmental protection, including the MOFTER Department for Environmental Protection and Inter-Entity Body, would be a useful step towards improving resources at the level of BiH, and would enable to the fulfillment of BiH international obligations, as well as efficient coordination and cooperation.
• Competence of the Inter-Entity Body, as defined by Articles 125, 126, and 127 of the new Draft FBiH Law on Environmental Protection, should be reviewed from the perspective of existing competences given to the state and entities, in order to clearly define the expert and coordinating role of this body and avoid disputes over the “validity of legal grounds,” overlapping of the competences for inter-state and inter-entity coordination, or overlapping with competences of MOFTERs’ Department for Environmental Protection. After these issues have been clarified, the adoption of this law should be supported because this Draft Law stipulates all the measures set out under the EIA and SEA Directives, such as introducing the obligation of a scoping phase to determine the scope of an EIA and precisely defining the strategic environmental impact assessment procedure. Furthermore, the Draft Law also distinguishes between the procedure for periodic (regular) permit renewal and the environmental permit review procedure at the request of an interested party. Finally, it should be noted that Article 69 of the new Draft Law stipulates that an environmental permit must be obtained following an urban planning consent, while under the current permitting procedure, the environmental permit is to be obtained before the urban planning consent. It is, therefore, very important that the adoption of the new Law is accompanied by changes to other relevant laws in FBiH in order not to block the permitting procedure for construction.
• The FBiH Rulebook on Plants and Installations that defines the plants and installations within the competences of FMOIT needs to also define the competences for issuing environmental permits for biomass and solar installations. Although the technical portion of the Rulebook was not covered by this analysis, the general impression is that environmental competence is better and more clearly defined than competences in other sectors and that the authorities in FBiH are working faster and more efficiently. Since the territory of FBiH is small and most energy infrastructure installations affect a wider environment (not just local), strengthening the capacities of competent authorities in FBiH should be a priority. It is also important to balance the need for experts in different technologies with the limited resources and needs in FBiH.
• The application of the FBiH Law on Environmental Protection in TC and ZDC (as well as three other cantons in FBiH) indicates that this model is much simpler and more efficient and ensures equal procedures for all investors. Therefore, the possibility for applying the new FBiH Law on Environmental Protection (following its adoption) also in cantons that have
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USAID Energy Investment Activity Project (EIA) Gap Analysis of Area of Environmental Protection in FBiH
adopted their own cantonal environmental protection laws should be considered, because this analysis has shown that the cantonal laws contain different solutions than the FBiH Law on Environmental Protection, which could put investors in an unequal position. From the perspective of environmental protection, the territory of FBiH is very small, which leads to doubt regarding the usefulness of having multiple separate environmental protection laws. The same approach could also be suggested for the Rulebook on Plants and Installations. However, the joint action and harmonized interests and needs of FBiH and the cantons in this area are certainly a prerequisite for this approach. If, however, the cantons (or some of the cantons) still opt for having their own cantonal environmental protection laws, then such cantonal laws should be completely harmonized with the FBiH Law on Environmental Protection.
• The degree of transparency of competent cantonal ministries should be increased and all relevant information (laws and secondary legislation) should be made available to the public. It would be particularly useful to develop Guidelines for Investors that would concisely and clearly explain the environmental permitting procedure, the competent institutions and the deadlines.
Contract Number AID-168-C-14-00002 29