Environmental impact assessment for developing countries in funded projects by international donors

Elena MĂRGINEANU, doctorandă (ORCID: 0000-0002-6157-8506)
Recenzent: Natalia ZAMFIR, doctor în drept, conferențiar universitar

This article has the objective to analyze the basic procedural differences between European and American legislation in regards to Environmental Impact Assessment (EIA) step within small–scale projects in developing countries funded by international donors. It has been observed that the typology of evaluation does not differ across project size, but it has incorporated exclusion criteria within a standardized evaluation form. Interesting is the fact that the environmental checklist is positioned slightly different within the EIA process in the EU and US, however in both cases for each accordingly — the same form is carried for small intervention and medium or large scale projects. Its evaluation criteria are based on the same principles, on the one hand — theoretically satisfying the standards of a rule of law, and on another hand — it impedes the mechanism of efficient implementation and sustainability. Keywords: Environment, impact, evaluation, project, financing.

Evaluarea impactului de mediu in proiecte finanțate de donatori internaționali pentru țarile in dezvoltare Acest articol are obiectivul de a analiza diferențele procedurale de bază dintre legislația europeană și cea americană în ceea ce privește etapa de evaluare a impactului asupra mediului (EIA) în cadrul proiectelor la scară mică din țările în curs de dezvoltare finanțate de donatori internaționali. S-a observat că tipologia evaluării nu diferă de dimensiunea proiectului, dar a încorporat criterii de excludere într-un formular de evaluare standardizat. Interesant este faptul că lista de verificare a mediului este poziționată ușor diferită în cadrul procesului EIA din UE și SUA, cu toate acestea în ambele cazuri pentru fiecare în consecință – aceeași formă este aplicată pentru proiecte de intervenție mică și pe scară medie sau mare. Criteriile sale de evaluare se bazează pe aceleași principii, pe de o parte – satisfăcând teoretic standardele unui stat de drept, iar pe de altă parte – îngreunează mecanismul implementării proiectelor. Cuvinte-cheie: mediu, impact, evaluare, proiect, finanțare.

1. Introduction

According to art. 20, paragraph (2) letter a) of Law no. 86 of 29.05.2014, for the evaluation of the impact on the environment1, the following information is required: description of the planned activity, including the description of the physical characteristics, the requirements regarding the use of a land during the construction and use phases; the estimation, under peak and quantity conditions, of the residues and the potential of the emissions (pollution of water, air, soil and subsoil, noise, vibration, thermal and radioactive radiation, etc.); this information can be provided for establishing the planned activity. Letter c) of the same article, must provide and present an element of average care that can be significantly affected by, in particular, the population, flora, fauna, soil, subsoil, water, air, factors climatic, material goods, including archaeological and architectural heritage, the landscape and the relationships between all these factors, with the necessary details to be able to establish an initial environmental zone in the area of the planned activity.

Therefore, the environmental impact assessment is preventive and includes the analysis of the potential ecological risk (which can be presented by the examined projects) in different fields: flora and biodiversity, amorphous and aquatic conditions, anthropogenic factors (all human actions in relation to nature). Thus, an environmental questionnaire includes the analysis of the major areas indicated in Law no. 1515 of 16.06.1993 regarding the protection of the environment2, section 2, chapter V (section 1, 2, 3, 4, 5) and chapter VI.

All environmental assessments and most of the initial environmental examinations establish mandatory “conditions” of the environment [mitigation actions] that must be fulfilled during the implementation of the project or activity to protect the environment and public health. The imperative of this assessment is to increase the attention of the administrative force to environmental issues. In the development projects with international financing, to satisfy the donor’s requirements, reference is made to both national norms (of the territory where the project implementation takes place) and to the international provisions.

2. The degree of investigation of the problem at present and the purpose of the research

According to the norms of the Republic of Moldova and of the specialized literature, the environmental impact assessment and its questionnaire must include provisions of several dimensions. The environmental protection covers aspects such as the economic management of resources, the ecological reconstruction of the environment and the avoidance of pollution. Thus, it verifies the existence of major environmental hazards starting from the territorial positioning, the potential for leakage, sedimentation or flooding, until the energy consumption and the impact on the road flow3.

By vegetation and biodiversity domain, is checked the impact of the project over the habitats of threatened or endangered species4 (if they are recorded near the place where the project will be implemented) and the danger of exploiting the toxic substances (either in soil or surface waters) that could endanger the natural development of micro–organisms.

By the dimension of atmospheric conditions5 and the quality of the water, it is ensured that the project in question does not provide for additional emissions into the air for which special environmental permits are required (preferably the absence of the need to issue it). Also, an ecological importance is water6 and its use: Law no. 272/2011 art. 2, art. 8 lit c), art. 15, art. 16, art. 22, art. 23, art. 24 provides for the special use of water. Purpose of its use does not fall under art. 22 a. (1) which provides for the following purposes: a) human consumption and other household necessities; b) watering the animals without the use of permanent structures; c) irrigation of land near the house; d) bathing and recreation; e) capture and use of water for fire fighting or any other emergency. Therefore, these modes of use do not require special authorization and do not present a major danger to the environment.

In the dimension of waste, the ecological approach is analyzed regarding the collection, storage, transport and recycling of waste7, as well as the public health risks associated with the project. The main objective is to verify the response of the projects to the requirements regarding the observance of the sanitary norms (recycling and reuse — official definition presented in the Law No. 209/2016) and following the waste categorization called hierarchy and the methods of its application, art. 3, paragraph (1): a) prevention; b) preparation for reuse; c) recycling; d) other recovery operations, including energy recovery; e) removal. Also, considering that the national program for waste management through Government Decision no. 248/2013, promotes the recycling or re–use of products and creation of measures to stimulate the reuse preparation activities — art. 14, paragraph (3). In order to achieve the objectives of the state policy provided in par. (1), the authorities of the local public administration, the initial producers of waste and the owners of waste have the obligation: a) starting with the date of entry into force of the present law, to ensure the initiation of the activities of introducing separate collection systems according to par. (1) lit. a); b) to carry out activities of reuse and recycling of waste in accordance with the objectives specified in par. (1) lit. b) and c)8. Therefore, as a result of the analysis of the potential impact on the environment, the recommendation to satisfy these requirements by counter measures is generally applied.

For United States donors, 22 CFR 216 (Reg. 216) is the US federal regulation that defines the process of environmental impact assessment (EIA) in the pre–implementation phase of USAID9. The result of this process is the Documentation Regulation 216 — mainly: Requests for categorical exclusions (PCE), Initial environmental examinations (IEE) and Environmental Assessments (EA). In accordance with sections 118 (b) and 621 of the External Assistance Act of 1961, as well as recent amendments (FAA), the general procedures are used by A.I.D. to ensure that environmental factors and values are integrated into the decision–making process.

For donors from the European Union, Directive 2011/92/EU with amendments of 2014/52/EU, provides all relevant criteria and explanations regarding the impact on the environment10 (an essential element of the EU environmental policy) for submitted projects — for both private applicants as well as for public candidates (these regulations include: the evaluation process, the environmental report, mitigation and monitoring measures, as well as compensatory measures). The process of environmental impact assessment (art.1, (2) letter g) takes place in 3 stages: screening, scoping and reporting itself. However, the first screening stage may be omitted for a set of projects (provided in Annex I of the Directive) if the competent authority decides that the nature of the project does not categorize it as a subject that necessarily requires the EIA, based on the environmental questionnaire in additional component quality when describing the screening stages in the document examined (Part A — The concept of screening; Part B — Practical recommendations on the screening process; Part C — The actual environmental questionnaire as a screening tool). Thus, the role of the environmental questionnaire is to (1) identify the potential environmental effect of the actions that are intended to be undertaken according to the project and (2) assess the significance of these effects.

A differential procedural aspect of the American and European standards for conducting the assessment is as follows: In the US, the exclusion categories are scored only after completing the environmental questionnaire. In the EU, however, the norms of the directive establish thresholds / criteria for the exclusion which defines the project as being exempt from the need for a screening or a full environmental assessment (questionnaire), the evaluation is carried out (or not) after the decision on its imperative, respectively the categories of exclusion are scored before the stage reserved for completing the EIA questionnaire11. Overall, projects may have an inclusion threshold — where EIA is mandatory (for projects (according to art. 4, Annex I and Annex II of the EIA Directive, 2014/52 / EU) which, depending on their nature, size or geographical location — can produce insignificant effects on the environment), and exclusion threshold — where EIA is not mandatory (eg: street lighting projects) where the threshold is indicative — the impact on the environment can be requested as necessary according to the specific of the given project12.

It may be mentioned that some European countries have adopted different levels of the thresholds for the exclusion categories (eg: the surface area, the amount of waste generated annually following the expected activity taking into account the cumulative effect, the geographical location), but there is a tendency of legislative standardization of thresholds13.

It is important to differentiate the environmental impact assessment questionnaire with the questionnaires used prior to the threshold identification stage and the exclusion category selection. For both donors, questionnaires will be used at the first stage of project analysis (EU model — prior EIA; US model — as an inherent part of the EIA process).

Table 1. Questionnaires for the initial project evaluation stage — EU model

Checklist	EU Environmental Checklist model*
Questions	Actions causing physical changes; Usage of non–renewable (in short supply) natural resources; Usage, storage, handling, production of potentially harmful substances; Production of solid waste; Release of any type of pollutants (reference to 2008/50/EC Directive and 2004/107/EC); Noise, vibration, release of light, heat energy or electromagnetic radiation; Contamination of land or water from released pollutants onto the ground, or into surface waters, groundwater, coastal or sea waters; Accident risks; Social changes risks; Consequential development related environmental impacts; Proximity with EU protected areas (ecological, cultural or other value); Proximity to sensitive areas; Proximity to sensitive species; Proximity of underground water with risk of impact; Scenic value; Public access to recreation or other facilities; Transportation routes susceptible to congestion; High visibility; Historic or cultural importance areas; Risk of greenfield loss; Risk of affect for existing land usage; Plans with potential affect for existing location; Population density in proximity; Proximity of highly sensitive land usage (e.g. hospitals, schools etc.); Proximity to scare resources area; Current subject of pollution; Susceptibility to earthquakes, landslides, erosion, flooding or adverse climatic conditions.
Summary	Summary of features of Project and of its location indicating the need for EIA.

Table 2. Questionnaires for the initial project evaluation stage — US model

Checklist	US Environmental Checklist model**
Questions	A. Activity and Site Information B. Activity Description (activity purpose and need, amount, location, beneficiaries, nr. of employees and annual revenue, implementation timeframe and schedule, detail description of items to be purchased, detail description of steps to be accomplished, existing or planned certifications, site map, photos — 11 questions) C. Activity — Specific Baseline Environmental Conditions (population characteristics, geography, natural resources, current land use and owner of land, proximity to public facilities, other relevant descriptions — 6 questions) D. Legal, Regulatory, and Permitting Requirements (3 q.) E. Engineering Safety and Integrity (18 questions) F. Environment, Health and Safety Consequences 1. Potential impacts to public and well–being (16 q.) 2. Atmospheric and air quality impacts (5 q.) 3. Water quality changes and impacts (9 q.) 4. Land use changes and impacts (7 q.) 5. Impacts to forestry, biodiversity, protected areas and endangered species (5 q.) 6. Historic or cultural resources (2 q.)
Summary	G. Further Analysis of Recommended Actions*** Categorical Exclusion; Negative Determination; Positive Determination; Activity Cancelation

Form structural point, he main differences between EU and US environment evaluation model is that EU checklist is analyzing the impact significance index for each question14, whereas the US model requests a descriptive answer upon request. From administrative essence of the document, the EU checklist is a prerequisite for EIA, whereas the US checklist is an integrated part of EIA.

Respectively, for EU and US donors, the registered scheme of working methodology is: legislative requirements; engineering integrity and security; environment, health and security consequences. However, the European approach is evident to be holistic, with the proximity considerations prevailing over those directly impacting the project site15, a delicate contrast with the American subdivided approach.

3. Methods and materials applied

Materials applied are 94 small–scale intervention projects, analyzed for environmental impact assessment under EU and US criteria. Thus, the data is divided in 2 sets of files corresponding to the donator origin. First set of projects is funded by EU donor (N=30), implemented during spring 2019; second set of projects is funded by US donor (N=64), implemented during autumn 2019. Information regarding the details of the mediating local organization with not be disclosed in accordance with the confidentiality clause that was signed between the beneficiary (implementer organization that is coordinating the project development) and the provider (the expert who undertakes the environmental impact assessment for the projects at hand).

Table 3. Evaluated projects by nature of hard component

Projects receiving approval and financing from the EU donor
14 localities have projects to develop closed spaces (culture house, high school, etc.); 13 localities have open space development projects (sports ground, park, etc.); 4 localities have projects that include both types of spaces provided for planning; 4 localities require gas connection (within the project);	According to the requirements for summarizing the features of the projects and the analysis carried out, major risks were not recorded. For all the projects of rehabilitation of the closed spaces it is necessary to monitor the works of construction and management of the resulting waste. For all projects of green space development (sports fields, parks, recreational areas) — place waste collection bins including at least one waste box for categories.
Projects receiving approval and financing from the US donor
11 projects for the development of closed spaces only (culture house, kindergarten, etc.); 20 open space development projects (sports ground, park, etc.); 22 projects that include the purchase of a machine or technique; 3 projects provide for irrigation; 8 projects have the prevalence of software components and do not present a risk to the environment.	According to the requirements for identifying subsequent recommendations and the project category, 94% of the projects received negative determination. One project received categorical exclusion as no hard component was detected, and one project received positive determination as materials proposed for the hard component could have been substituted with more sustaianble options.

Following the elaboration of the questionnaires, the projects were divided by type of intervention and monitoring indicators compatible with the recommendations included in the report.

4. Results obtained and conclusions

In terms of covering the environmental dimensions, both approaches have met the normative rigor. From a procedural perspective, however, for projects with small–scale intervention where the impact threshold cannot be associated with the phrase “significant impact” nor in cumulative variant with the existing on–site objectives, the approach required by the US federal regulation (22 CFR 216) imposes rigor that goes beyond the real need for analysis of the subject. For projects with medium or large–scale interventions, the paradigm is reversed.

By regulating the environmental impact assessment rules, the implementation mechanism is also established: gradual (EU) or fixed (USA). Obtaining final approvals for project financing can only be made after completing the environmental report, questionnaires and recommendations for reducing the potential impact on the environment (specifying mitigation and monitoring indicators). The requirements for project evaluation must correspond to all project proposals (with variations in the nature, location and size of the project) having legal arguments for their inclusion, exclusion or modification and to provide a legal framework for rigorous technical assistance. In this context, development projects with small interventions are subject to the same analysis criteria as those submitted to large projects. This approach might reduce the interest toward replication of small–scale yet long–term project implementation.