Europe Forces Belgium To Adapt Its Environmental Impact Assessment Concerning Projects

On 24 March 2011, Belgium was condemned by the Court of Justice because of its deficient implementation of directive 85/337/EG on the assessment of the effects of certain public and private projects on the environment (hereafter, the “Project EIA Directive”). In order to meet the demands of the Court, the Flemish Region adapted its rules concerning environmental impact assessment through the decree of 23 March 2012 and the implementing order of 1 March 2013. As a result of this adaptation, the projects which are located below the threshold values and which were formerly not under an EIA obligation are henceforth the object of a screening note.

In effect, the violation of the Project EIA Directive was caused by the fact that a number of projects which were included in attachment II of the Project EIA Directive were excluded merely on the basis of their dimensions, whereas the European rules require that other criteria are also examined, such as the nature and location of the project. On the Flemish level, the Project EIA Order contains threshold values to determine if the project concerned was under an

EIA obligation or not. Projects which were located below those threshold values were not required to go through an EIA. For example, the Project EIA Order stipulates that only breweries with a productive capacity of 75 million litres per year are required to go through an EIA. If a brewery would produce less than 75 million litres per year, this brewery would not be obliged to undergo an EIA, which contradicts the Project EIA Directive as the directive puts all breweries under an EIA obligation, without adding threshold values.

According to the Court, all permit requests must be examined to verify if the permit concerned will cause any possible environmental impact. An assessment which is solely based on threshold values on the Flemish level does not consider other relevant criteria. In accordance with the Project EIA Directive, also the nature and location of the project, the production of waste matter or the accident risk has to be taken into account. As a consequence, the Flemish regulation does not guarantee that all projects which might cause any environmental impact will be submitted to an environmental impact assessment. Those projects, which did not have to go through any environmental impact assessment before this judgment of the Court, will face a screening from now onwards.

Henceforth, a distinction needs to be made between three categories of projects. Besides projects under an EIA obligation and projects under an EIA obligation with a possibility of exemption, the projects under a screening obligation form a new third category. The initiator will have to add a screening note to its request in order to obtain an environmental or an urban development permit at the authority which will grant the permit on the basis of a specific form.

The screening note is part of the examination of the admissibility and the completeness of the request. The authority which will grant the permit will examine The note and decides on a case-by-case base if the screening note is sufficient. The decree of 23 March 2012 has also extended the periods for the examination of the admissibility and completeness of the request, which is now 30 days instead of 14 days. If the granting authority decides that no Project EIA is required, one will go through the usual procedure of a permit request. However, if the granting authority decides that a Project EIA is still required, the permit request will be legally incomplete and therefore, the initiator will have to draw up a Project EIA or request an exemption at the EIA authority.

In practice, limited projects will also be submitted to a screening because of the new rules concerning EIA screening. Therefore, a small car park will easily be considered as an urban development project. In effect, thirteen categories of projects are now submitted to an EIA screening because of the European ruling, such as agriculture projects or tourism and recreational projects like campsites or theme parks. The EIA obligation also applies to the renewal of an existing permit. If the initiator submits a request for the renewal of an environmental permit and if he is required to submit a screening note, he might be faced with a decision of the granting authority which stipulates that a Project EIA still needs to be drawn up.

Moreover, the extension of the EIA obligation Contains an evaluation duty for the local administration. The Socio-Economic Council of Flanders and the Council of Environment and Nature of Flanders questioned the ability in terms of equipment of these local administrations to bring such a screening to a favourable conclusion. Moreover, this screening procedure creates a bigger workload for these administrations whereas already some of them can hardly keep up pace nowadays.