The environment impact assessment (EIA) procedure is an inseparable part of the realization of every major investment project. Independently of the fact whether you will invest in the construction of highway, waste recycling plant, wind power plant etc., you have to obtain a positive decision on environment impact decision.
I. Historical overview and applicable legislation:
The Bulgarian legislator introduced the EIA procedure in 1991 with the adoption of the former Environmental Protection Act (EPA). The Act implements the provisions of Directive 85/337/EEC as of 27 June 1985 on the environment impact assessment of certain public and private projects. The EIA procedure was extended with the current Bulgarian Environment Protection Act, adopted in 2002. With regard to the EIA procedure applies since 2003 also the Ordinance for the conditions and the order for implementing of environmental impact assessment (OCOIEIA).
The purpose of the adopted legislative and regulatory measures is largely to transpose the European environmental protection requirements, as defined in Directive 2014/52/EU and the Convention on Environmental Impact Assessment in a Transboundary Border, where Bulgaria is a member state.
II. Which investment projects are subject to EIA:
Art. 92 of the EPA provides for which investment projects in Bulgaria the EIA procedure is mandatory and this provision also refers to Addendum № 1 and 2 of EPA. In generally, almost every big construction project in Bulgaria, whose implementation provides for significant environmental impact, is subject to EIA. These are the investment projects for construction of roads, railways, ski slopes, ski lifts, dams, electricity plants, incl. nuclear plants, coal plants, wind power plants and photovoltaic plants exceeding significant power, refineries, ports, airports, plants for processing of heavy metals, waste recycling plants, sewage plants, large farms for raising of birds and other animals, mines, electricity lines, pipelines etc.
III. Stages of the EIA procedure
The EIA procedure consists of 7 main stages.
- The first of them is the notification of the competent Bulgarian bodies and the affected population. The Assignor is entitled to notify the competent bodies about his investment project, as these bodies are the Bulgarian Ministry of the Environment and the Waters (MEW), the Regional inspections for environment and water (RIEW), depending on the scale of the project. At the same time the Assignor notifies in written the affected population by uploading the project on his website, as well as through the mass media or in any other appropriate way. It should be noted, that the web site of the Ministry of the Environment and the Waters contains public register about the EIA procedures (on the following web link - http://registers.moew.government.bg/ovos/).
- The second stage is to be decided whether the investment project requires EIA in Bulgaria. The competent administrative body takes a decision whether the investment project requires an EIA procedure and notifies the investor thereto.
- The third stage is to define the scope, the content and form of the EIA report, as well as its preparation. The EIA report shall contain detailed information about: the specifications of the construction, the characteristics of the environment and all its components, the description of the potential significant environmental impact of the project, the alternatives of the investment project, list of the information sources, description of the methods used to determine the EIA, measures for decreasing of the future negative environment impact.The report shall emphasize on the direct and indirect impact of the investment project over the population and people‘s health, the biological diversification, including but not limited to the biological species and their habitats, which are subject of protection within the National ecological network, the soil, the earth bowels, the water, the air and the climate, the tangible assets, the cultural and historical heritage and the landscape.The EIA report shall be prepared by a team of independent experts, which includes experts of different areas of the science – ecologists, ornithologists etc.
- After the submission of the EIA report the respective authorities are given the possibility to prepare its quality assessment (fourth stage). In other words, the authorities shall assess whether the report complies with the specifications provided. This assessment shall be executed by the relevant administrative body within 30 days since the submission of the report. The assessment could be positive or negative. In case of a negative assessment the authorities provide the investor with instructions for the removal of the deficiencies and inconsistencies within the report. In the event of 3 negative assessments of the report, the EIA procedure is being terminated. The decision for its termination could be appealed before the relevant Administrative court.
- In the event of a positive assessment comes the fifth stage – the public discussion of the report. The discussion is being held within the affected districts – municipalities, city mayors. Every citizen is allowed to access the report, as well as to participate at the public discussions by raising questions to the experts. The affected population is being notified for the upcoming public discussions by posting of a notification on a visible place in the municipality/mayor building, through the web site of the investor, as well as through the mass media, including the local press and radio. The protocol from the public discussion shall be presented to the administrative body, as the latter could require further amendments of the report, based on opinions, statements and objections, which have been set during the public discussions. In case of such amendments to the report new public discussions of the amended report shall be organized.
- After the end of the public discussions follows one of the last steps – taking of the EIA decision. As the most import step of the process the positive EIA decision is an absolute prerequisite for the execution of the investment project. The EIA decision shall be taken within 45 days since the public discussions are over. The EIA decision is positive in the event of no motivated objections of unlawfulness against the implementation of the investment proposal and if with the plan for fulfilment of the measures for prevention, reduction or liquidation of significant negative impacts ensures the observing of the standards for quality of the environment and the protection of the population’s health. The decision may also be negative, in most cases if: the investor has not proposed or approved alternatives for the implementation of the investment project, which will ensure compliance with the environmental quality standards; the execution of the investment project will seriously damage the protected areas; some justified legitimate objections were brought against the report etc.
- The seventh and last stage from the procedure is the exercising of control for the execution of the decision. The control is being exercised by the competent authorities during the approval and the coordination of the investment projects, during the construction, with the issuing of permission for exploitation of the object and during the exploitation of the object.
IV. Appeal of the EIA decisions
Every single EIA Decision, disregarding the fact if positive or negative, is a subject of appeal within 14-days term by the persons, who has proven legitimate legal interest to do it. In case of negative EIA decisions, the decision could be appealed by the investor. Recently, it has become extremely popular that positive decisions are being appealed by various organizations for environment protection.
The appealing procedure is executed through the administrative body, which has issued the contested EIA decision, to the competent administrative court. The court procedure has 2 instances. The decisions of the administrative court as first court instance could be appealed before the Supreme Administrative Court as second court instance. The Decisions of the 3-members panels of the Supreme Administrative Court as first court instance could be appealed before a 5-members panel of the Supreme Administrative Court as second court instance.
V. Different hypotheses in case of appeal against the decisions. Case-law.
Within the next few lines we will look after some specific hypotheses when appealing the EIA decisions in Bulgaria.
One of the most common ground for repealing of the negative EIA decisions is when the latter are based on objections, submitted after the end of the public discussions. In this event, before rendering its EIA decision, the competent body shall request new information from the investor, revising and amending of the EIA report.
Other common ground, which leads to repealing of the negative EIA decisions, is in the event of significant discrepancies between the conclusions of the administrative bodies, based on the evidence collected during the EIA procedure, including the positive assessment of the reports, the lack of negative statements of the relative authorities, as well as the lack of objections during the public discussions, and the motives of the EIA decision, which does not approve the realization of the investment project.
The above two cases are classic examples for the non-compliance of the EIA decision with Art. 35 of the Administrative Procedural Code (APC), which provides that the individual administrative act shall be issued after clarifying the facts and the circumstances which are significant for the case, and after considering the explanations and the objections of the interested citizens and organisations, if such ones are given, respectively made.
Most common case could be the termination of the EIA procedure as a consequence of 3 negative assessments of the report (Art. 15, it. 4 of OCOIEIA). In order the Decision to be lawful, the legislator requires the first negative assessment to mark all the deficiencies and inconsistencies of the report, and the second and the third negative assessments eventually to be a result of the non-removal of the deficiencies and inconsistencies, marked with the first negative assessment. Usually the above doesn’t happen, as the administrative body marks new deficiencies and inconsistencies within the second and the third negative assessments, which were not marked by the first negative assessment. This is a ground for the repeal of the decision for the termination of the EIA procedure and for the returning of the latter to the competent administrative body together with mandatory instructions.
VI. Penalty procedure against Bulgarian state
Through Decision as of 14.01.2016 the EU Court of Justice adjudged the Bulgarian state for non-compliance with the applicable environmental law provisions.
Link to the Decision:
The Bulgarian state was found guilty on 4 paragraphs, as the main of them is that the state had approved the construction of numerous wind power plants and a hotel complex together with golf course within the territory of the environment protected areas “Kaliakra” and “Belite skali”. The court ruled, that the state had not complied with Directive 2009/147/ЕО and Directive 2011/92/ЕO and had not undertaken the necessary measures for saving of the wild flora and fauna.
On one of the projects the Bulgarian state concluded, that no EIA is required, meanwhile the other projects received positive EIA, despite the fact that they affect habitats in protected areas. The European Court of Justice ruled, that the Bulgarian state has violated the European environmental legislation, objectified in the above mentioned directives, whose provisions are mandatory for all member states.