Adoption of the Environmental Assessment Code (GE0057)

Adoption of the Environmental Assessment Code; This commitment implies adoption of the environmental assessment code that will envisage the requirements of the convention “on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters” (hereafter, Aarhus Convention) in the environmental protection issues and will ensure public participation in the decision-making process in relation with effects on the environment, particularly: • to bring potential negative impact of high risk activities on the condition of the natural environment, as well as on human life and health under the environment assessment regulation, in compliance with the requrements of EU directive 2011/92/EC “on the assessment of the effects of certain public and private projects on environment”; • Public participation in the elaboration and adoption process of bylaws (strategic douments) regulating activities that might have potential impact on natural environment and human life and health as well, dissemination of the information through printing media and electronically at the initial stage of the elaboration of strategic documents, involvement of public and scientific opinion in the process of public discussions conducted for the purposes of elaboration above mentioned documents; • Environmental decision-making, public engagement at the initial stage according to the principles of public administrative proceedings. Publication of information on on the place of planned activities, as well as electronically and through printing media, conducting public discussions on the place of planned activity, consideration of proposals and oppinions during the decision-making process. Date ofImplementation: 2016-2017; Issues to be Addressed: The practice has proven that existing regulations have significant shortcomings. With regard to the environmental impact assessment, numerous activities presenting the risk of having harmful effect on the environment remain beyond the scope of regulation that increases the degree of negative impact and the risks of such impact on the environment and human health. The procedures related to the environmental impact assessment and issuance of the relevant permits do not envisage public participation, as the publicity burden lies on the permit seeker, and the decisions are made by simple administrative procedure. There is no efficient mechanism to conduct spatial, economic and other state planning process in various sectors with consideration of environmental and human health protection aspects, so that while developing certain plan/program environmental and human health protection matters should be taken into account at a maximum early stage, and wide society and scientific population should be involved in the processes. Main Objective: Bring the activities having significant impact on the environment under the regulation, reduce the risks of negative impact on the environment; Define anticipated environmental protection risks at the initial stage of activity planning, reduce investor’s costs and financial risks; Take into account environmental protection interests while making spatial and economic planning (strategy planning) of the country; Inform and involve society at the initial stage/ throughout the process of the activity planning, ensure participation of scientific commuity and wide public in the process that will increase citizens’ trust in compliance with the requirements of Aarhus Convention.

✪16. Adoption of the Environmental Assessment Code

Commitment Text:

This commitment implies adoption of the environmental assessment code that will envisage the requirements of the convention “on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters” (hereafter, Aarhus Convention) in the environmental protection issues and will ensure public participation in the decision-making process in relation with effects on the environment, particularly:

• to bring potential negative impact of high risk activities on the condition of the natural environment, as well as on human life and health under the environment assessment regulation, in compliance with the requirements of EU directive 2011/92/EC “on the assessment of the effects of certain public and private projects on environment”;
• Public participation in the elaboration and adoption process of bylaws (strategic documents) regulating activities that might have potential impact on natural environment and human life and health as well, dissemination of the information through printing media and electronically at the initial stage of the elaboration of strategic documents, involvement of public and scientific opinion in the process of public discussions conducted for the purposes of elaboration above mentioned documents;
• Environmental decision-making, public engagement at the initial stage according to the principles of public administrative proceedings. Publication of information on the place of planned activities, as well as electronically and through printing media, conducting public discussions on the place of planned activity, consideration of proposals and opinions during the decision-making process.

Responsible institution(s): Ministry of Environment and Natural Resources Protection of Georgia

Supporting institution(s): Financial support – EU, program “Greening Economies in the European Union’s Eastern Partnership (EaP) Countries” – EaP GREEN; program implementer UN Economic Commission for Europe–UNECE

Start date: Not provided....... End date: August 2017

Editorial note: This commitment is clearly relevant to OGP values as written, has transformative potential impact, and is substantially or completely implemented and therefore qualifies as a starred commitment.

Commitment Aim:

The Ministry of Environment and Natural Resources Protection of Georgia (MENRP) [58] committed to adopt an environmental assessment code to bring activities with potential environmental effects under the Ministry’s regulation, assess activities against environmental protection interests, and inform and engage citizens in the decision-making process for approving these projects. [59] The commitment aimed to adopt an environmental assessment code; train a specific structural unit to adjust MENRP’s work to the new regulations; inform other administrative bodies involved in the authorization process regarding these changes; and train academics and other stakeholders in how to participate in environmental impact assessments (EIAs).

Status

Midterm: Substantial

The Environmental Assessment Code was adopted in the beginning of 2017, to be enforced starting January 2018. The Code opened up the environmental assessment process to citizens by obliging the Ministry to:

• Inform citizens regarding project proposals via different channels such as the Ministry website, newspapers, and the building of the Ministry;
• Collect feedback from citizens in electronic or written form, as well as through public discussions; and to
• Provide feedback on which proposed suggestions were taken into account.

However, by the midterm, the Ministry had yet to address the other milestones, such as staffing the structural unit, informing other administrative bodies involved in the authorization process of the new regulations, and training academics and the general public in how to participate in the assessment process.

Some CSOs working in the field were concerned of shortcomings in the legislation, such as in the case of subsoil, where the National Environmental Agency is authorized to issue permits prior to environmental assessment. In their opinion, this might diminish the importance of the assessment and influence the outcome of the assessment process. For more information, please see the 2016–2017 IRM midterm report. [60] 

End of term: Substantial

After the adoption of the Environmental Assessment Code, the government of Georgia made significant changes to the structure of the ministries. The Ministry of Environment and Natural Resources Protection of Georgia (MENRP) merged with the Ministry of Agriculture and Regional Development to form a new Ministry of Environment Protection and Agriculture (MEPA). According to Green Alternative, an environmental CSO, this merger shuffled individuals responsible for implementing the commitment, resulting in a lack of competence by staff working on the environmental assessment process, thereby affecting the quality of information published about the projects in question. These staffing issues also impeded the full implementation of the remaining milestones. Additionally, since the two ministries merged their websites, information on environmental assessments gets lost in the shuffle of news regarding agriculture. [61]

According to MEPA, two trainings were conducted in September 2018 on environmental impact assessments and strategic environment protection assessments. In total, 56 participants were trained including employees of MEPA and other ministries, as well as implementing companies and planning departments. Additionally, the Ministry increased their capacity by adding specialists to the responsible department. [62]

Did It Open Government?

Access to Information: Marginal

Civic Participation: Marginal

The commitment sought to open up environmental assessments to citizens by involving them in the screening and scoping process–a process which excluded civic participation since the mid-2000s.

In October 2018, the Ministry provided statistics on civic participation in the environmental assessments. According to the Ministry, since 1 January 2018 when the Environmental Assessment Code came into force, all incoming requests are published on the Ministry’s website including screening requests (127 in total), scoping requests (61), their respective decisions to date (screening: 75, scoping: 37), as well as public meeting announcements (55 in total). [63] The Ministry does not have statistics on citizen engagement. However, the Ministry accepts citizen suggestions in written and oral forms and includes them in the meeting transcripts. [64]

While CSOs commended the Ministry for adopting the Code and opening citizen participation channels during environmental impact assessments, several loopholes remain both in legal norms and in practice. According to a recently published policy brief by Green Alternative, there are two deficiencies in the legislation. First, while citizens can participate in all three stages of the environmental assessment, the Ministry and the project implementer exercise the right to initiate a change to the resulting decision. If such a change is initiated, instead of a public administrative procedure with citizen participation, simple administrative procedure is conducted, leaving citizens outside of the process. Secondly, the Code has two annexes which list types of projects that are subject to mandatory environmental assessment. While activities listed in Annex 1 are automatically subject to EIA, activities under Annex 2 are subject to assessment only if the Ministry decides that the EIA is necessary. According to this annex, open-cast mining of minerals is only subject to mandatory EIA if the surface of the mining site exceeds 25 hectares; peat extraction falls under the same requirement if the surface of the site exceeds 150 hectares. Environmental experts believe that 25 and 150 hectares are exceedingly high thresholds and inadequate for protecting natural resources and the environment. [65] As noted in the Midterm Report, the Code also falls short of regulating EIAs in forestry. [66]

According to experts in the field, the practical implementation of the new Code has shortcomings as well. For example, the Ministry violates procedural norms by publishing insufficient information regarding the project proposals, and by changing public hearing dates without notifying stakeholders. Environmental experts have the impression that while some of the shortcomings might be due to a lack of competence, on some occasions the Ministry deliberately avoids following the procedural norms. As the first two years implementing the Code set the precedent for years to come, these concerns were brought to Parliament and a hearing with the Environmental Protection and Natural Resources Committee was requested. While Parliament promised to hold a hearing on the loopholes in legal norms and their implementation, no such hearing was held as of December 2018. [67] Additionally, experts in the field call for increased human and financial resources in the relevant department of the Ministry to increase competency in implementing the Code. [68]

As for assessing the impact of the commitment, according to a leading NGO in the field, at this early stage of implementation it is difficult to assess the extent citizen inputs are taken into consideration in the final decision regarding the proposed projects. [69]

Carried Forward?

The LEPL Environmental Information and Education Centre under the Ministry of Environment Protection and Agriculture made a new, related, commitment in the new 2018−2019 National Action Plan to increase the efficient application of the Environmental Assessment Code. The new commitment, Commitment 5, envisions creating a web-platform for publishing information regarding assessments and decisions; this will increase citizen access to information regarding upcoming projects and simplify their involvement in the assessment process.

According to Green Alternative, this platform would enable efficient dissemination of project information and would allow for easier citizen participation by offering online space for comments. Additionally, this platform could be used for involvement in other assessment processes, including assessment of government strategies among other documents. [70]

[59] Government of Georgia, Georgia National Action Plan 2016-2017 (OGP, 3 Nov. 2016), http://bit.ly/2t2eFxU.

[60]  Lasha Gogidze and Tamar Gzirishvili, Independent Reporting Mechanism (IRM): Georgia Progress Report 2016-2017 (OGP, 30 Apr. 2018), https://bit.ly/2NIr097.

[61] Keti Gujaraidze (Policy Analyst) and Irakli Macharashvili (Biodiversity Program Director, Green Alternative), interview with IRM researcher, 22 Aug. 2018.

[62] Salome Dvali (2^nd Category Senior Specialist in the Strategic Planning Unit of the Environmental Assessment Department, Ministry of Environment Protection and Agriculture), e-mail correspondence with IRM researcher, 19 Oct. 2018.

[63] Id.

[64] Id.

[65] Kety Gujaraidze, “A Year After the Enactment of the Environmental Assessment Code: the Shortcomings Identified” (Green Alternative, 14 Dec. 2018), http://greenalt.org/wp-content/uploads/2018/12/EIA_policy_brief_2018_FINAL_ENG.pdf.

[66] Rezo Getiashvili (Environmental Projects Coordinator, Caucasus Environmental NGO Network (CENN)), interview with IRM researcher, 28 Dec. 2018.

[67] Keti Gujaraidze (Policy Analyst, Green Alternative), interview with IRM researcher, 26 Dec. 2018.

[68] Id.

[69] Ann Inasaridze (Environmental Resources Management Specialist, CENN), email correspondence with IRM researcher, 29 Dec. 2018.

[70] Gujaraidze and Macharashvili, interview, 22 Aug. 2018.