On problematic issues of EIA application in the extractive industry
Back in 2016, the Verkhovna Rada of Ukraine adopted the Law "On Environmental Impact Assessment". From the very first days, its implementation immediately faced difficulties - a veto was imposed. Only 8 months later, the Law was supported in parliament and signed.
After more than 2 years of implementing this Law, the DiXi Group analytical center decided to investigate the issue of implementing the EIA procedure and understand what problems mining companies face, whether they can be remedied, and how to do it.
One of the problems is the significant number of EIA procedures that a mining company must carry out, especially at the stage of field development. For example, for one field, a mining company can simultaneously or at different stages conduct EIA procedures for mining/continuing mining of minerals, drilling wells/well, related activities, etc. To solve this problem, it is necessary to analyze and determine which EIA procedures can be consolidated for the entire field project.
Another problem is the absence of industry standards and criteria for key stages of the EIA procedure (report, conclusion). Currently, the implementation of the Law "On Environmental Impact Assessment" is carried out through consultations provided by employees of the Ministry of Energy and Environmental Protection to business entities. The absence of standards and criteria for determining the significance of environmental impact from mining activities creates room for manipulation for all parties involved in the EIA procedure - both for the company and for the permitting authority. A possible solution could be the introduction of industry guidelines or standards for developing reports and conclusions in the field of mineral extraction (for different types of minerals and different types of activities). For example, Finland has developed a guide for conducting EIA for mineral extraction projects.
The absence of requirements for individuals/companies preparing the draft EIA report leads to certain misunderstandings in this area. These reports are complex in their structure and should be prepared by qualified specialists, but currently, there are no requirements in Ukraine for the qualifications of individuals or companies preparing EIA reports. To solve the problem, Ukraine can choose certification or another tool for verifying the competencies of individuals/companies preparing draft EIA reports.
It is important that mining companies know who they can turn to, and the Ministry of Energy and Environmental Protection (or another body providing the conclusion) can verify the qualifications of the EIA report developer.
The issue of appropriate conditions for civil society participation in the EIA procedure also requires attention. There is still a large proportion of public hearings that are considered to have taken place in the absence of public representatives. For example, out of 373 cases related to mining activities (a sample from the EIA register as of December 28, 2019), in 136 cases, public representatives did not appear at the hearings. In all these cases, the EIA procedure proceeded. Ways to solve this problem include compliance with the requirements of the Law "On Environmental Impact Assessment," which provides for the creation of appropriate conditions for public participation, state and public sector control over the implementation of the Law, educational activities, improvement of the functionality of the Unified EIA Register, etc.
Separately, it should be noted the problem of compliance with international legislation on EIA issues (Aarhus Convention, Espoo Convention, relevant EU directives) during the implementation of hydrocarbon extraction projects. A striking example is the case against Ukraine in the International Secretariat of the Aarhus Convention regarding the conclusion of production sharing agreements in 2013 without an EIA, as well as the "amber law", which abolished this procedure for production sharing agreement projects. A balanced solution should be an analysis of the best world and European practices and, as a result, amendments to Ukrainian legislation.
Olga Polunina, Sustainable Development Manager, Dixi Group