Land and people: what's wrong with environmental impact assessment in mining?
Environmental Impact Assessment - an obstacle to increasing gas production, or a development tool?
Deputies voted for the land market in Ukraine. But what about the land that belongs to communities, the state, and on which gas, amber, etc. are extracted? Companies that use subsoil, according to the adopted law, must conduct an environmental impact assessment (EIA), and here everything is not simple. Laws are adopted with difficulty, but their implementation is often even more difficult for us.
Back in 2016, the Verkhovna Rada adopted the Law "On Environmental Impact Assessment". From the first days, its implementation immediately faced difficulties - a veto was imposed due to an appeal by the Association "Pig Farmers of Ukraine", whose representatives believed that the Law would stop the industry. Only 8 months later, after taking into account the President's proposals, the Law was supported in parliament and signed.
Subsequently, many questions arose, particularly in mining industry projects. The environmental impact assessment (EIA) procedure had to be carried out, but secondary legislation had not been adopted, and the six-month transitional period was also insufficient for mining companies. Some subsoil users have a large number of special permits issued simultaneously, and their validity period also expired simultaneously, and extending the validity period required an EIA, which meant the simultaneous start of many procedures.
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 arise for a mining company, whether it 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 field development stage. For example, according to a sample from the Unified EIA Register, in 46% of cases, the EIA procedures carried out by "Ukrgasvydobuvannya" concern well drilling (including separate EIAs for each well, or for a complex of wells), another 8% of procedures are related to various associated activities. This is more than half of the total number.
At the same time, for one field, a mining company can simultaneously or at different stages carry out EIA procedures for the extraction/continuation of mineral extraction, the construction of wells/well, associated activities, etc. To solve this problem, it is necessary to analyze which EIA procedures can be consolidated for the field project as a whole. In this case, the regulatory burden on companies will decrease, and the public will have more information, as they will know about the entire project (and not just one well), and will not get lost in many announcements, reports, and hearings.
Another problem is the lack of industry standards and criteria for key stages of the EIA procedure (report, conclusion). The Law stipulates that the Ministry of Energy and Environmental Protection is responsible for regulatory and methodological support and standardization of EIA report preparation. Currently, the implementation of the Law in this part is carried out by providing consultations to business entities by employees of the Ministry of Energy and Environmental Protection.
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 standards for the development of reports and conclusions in the field of mineral extraction (for different types of minerals and for different types of activities).
For example, in the EU, guidance documents have been developed for conducting EIA at various stages: screening, scoping, and EIA report preparation. The first steps in this direction are also being taken in Ukraine. On March 2, 2020, the Ministry of Energy and Environmental Protection approved Methodological Recommendations for the development of an environmental impact assessment report in the forestry sector, developed to improve the quality of EIA reports. A similar document would be useful for the mining industry as well. For example, in Finland, a guide has been developed for conducting EIA for mineral extraction projects.
The lack 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, no requirements for the qualifications of individuals or companies preparing EIA reports have been established in Ukraine.
It should be noted that Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment and Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment do not provide for such requirements, so EU member states independently chose measures aimed at ensuring the quality of EIA reports. For example, Cyprus, Malta, Romania, and Croatia have introduced mandatory accreditation for persons preparing EIA reports, and in Denmark, the authorized state EIA body was designated as responsible for preparing the report.
As for international experience, in Canada, there is no requirement for certification of persons preparing EIA reports. At the same time, Canadian universities offer environmental impact assessment training programs - at both higher and postgraduate levels, as well as certificate programs. In addition, the Canadian Environmental Assessment Agency offers two-day training programs for everyone interested.
Ukraine can choose certification or another tool for verifying the competencies of individuals/companies that prepare EIA reports. It is important that extractive 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 proper 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 extractive activities (a sample from the EIA register as of December 28, 2019), in 136 cases, public representatives did not appear at the hearings. At the same time, in all mentioned cases, the EIA procedure proceeded further. Ways to solve this problem include compliance with the requirements of the Law "On Environmental Impact Assessment," which provides for the creation of proper conditions for public participation, state and civil sector control over the implementation of the Law, and educational activities.
In particular, greater accessibility of information about hearings within the EIA procedure is possible through improving the functionality of the Unified EIA Register: distributing information by categories of stakeholders (for example, a separate tab with information for the public regarding participation in EIA), the ability to classify and search for cases by planned activity areas, region, stage of the procedure, etc. Currently, the Register has limited capabilities in terms of data processing; cases are stored as scanned files, which does not contribute to its active use.
Separately, the problem of compliance with international legislation on EIA issues (Aarhus Convention, Espoo Convention, relevant EU directives) during the implementation of hydrocarbon extraction projects should be noted. 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 conducting an EIA, as well as the "amber law," which canceled 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.
In European practice, quality EIA is an effective tool for planning economic activities and an important element in ensuring the sustainable development of the territories where these activities are carried out. The common task of the state and the civil sector is to find a balance between environmental protection, business interests, and providing the state with strategically important resources.
DiXi Group expert Olga Polunina for NV "Business"