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RevCEDOUA A. 3, nº 5 (2000) >

Please use this identifier to cite or link to this item: http://hdl.handle.net/10316.2/5719

Title: O novo regime da AIA: a avaliação de previsíveis impactes legislativos
Authors: Aragão, Alexandra
Dias, José Eduardo
Barradas, Maria Ana
Keywords: Avaliação de impacte ambiental
AIA
Issue Date: 2000
Publisher: CEDOUA
location : Local:Coimbra
Abstract: Res:Desde a adopção de uma Directiva Comunitária sobre avaliação de impacte ambiental (AIA) em 1997 que se sabia que o regime da AIA em Portugal teria que mudar. Três anos depois, o mesmo chegou. Em 3 de Maio, o Decreto-Lei n.º 69/2000 revoga toda a legislação em vigor, corrige falhas do regime legal anterior e traz consigo algumas novidades. São estas inovações da lei que os autores analisam: umas que nos põem na frente do pelotão europeu; outras que nos fazem correr sérios riscos de repetição do incidente judicial que, em 1997, levou Portugal ao Luxemburgo para se sentar no banco dos réus do Tribunal de Justiça...
Res:This article appears following a previously published one by the same others in this review (2, 1998) on the reform of the environmental impact assessment regime. Decree Law n.º 69/2000 which approved the new legal regime referring to environmental impact assessment (EIA) was analysed with reference to the regime established by Directives 85/337/CEE and 97/11/CE throughout the article. In general, the new regime is a positive advance when compared to the previous one. It, correctly, transposes the Directive, reinforcing the fundamental principles of Environmental Law. However, one can note some retreats relative to the Environment Ministry’s proposal submitted to public discussion in March 1999. The article begins by analysing the screening of actions: the submission of the projects to an Environmental Impact Assessment results from their inclusion in the lists defined in Annex I and II and from a case to case selection. The possibility of dispensation (total or partial) of an Environmental Impact Assessment is expressly foreseen but with an excessive amount of administrative discretionary power in the matter. We then proceeded to study the procedure of the Environmental Assessment. One underlines a more complete and detailed regulation of the procedure. In regard to the organic structure, the amount of competent authorities was enlarged and now all of them have their competences expressly defined. In regard to this last matter, one must also underline the interdisciplinary composition of the Assessment Commission, the distinction between the Assessment Commission (that elaborates the final technical opinion on procedure) and the Environmental Impact Assesssment Authority (that emits a decision proposal) and the possibility of intervention by technicians and specialised consultants integrated or not in the Public Administration. In regard to the procedural phases, we analysed, in detail, the following: a) In the scoping phase the proponent can, if he wants, ask the Evaluation Commission to reply as to a proposal of scope definition at a time when it is still possible to better its technical quality through alterations or corrections made in the EIA. Mandatory Public consultation in this phase was not foreseen. In regard to the content of the EIA the Directive was not very well transposed in relation to the information required and in regard to the possibility of excluding aspects that make up the minimal content of the EIA. b) Public participation, one criticises the new formula which defines the procedural legitimacy in order to determine who can participate in the EIA procedure: the use of the notion of neighbour is correct, but it was not done in the best manner in view of the fact that only the criteria of residence was resorted to. The competence to publicise the EIA belongs to a government body, the Institute for Environmental Promotion. The amount of publication is amazing but the specification as to what should be publicised is insufficient and the publicity through the adequate technological means was not foreseen. Of utmost importance is the widening of the guarantee that refers to public participation. This guarantee is enlarged through the indication of the places where consultation of the EIA is possible and by the number of elements of the EIA that have to be mandatory published. However, the curtailing of the timetables that refer to public consultation is criticisable. c) Institutional Collaboration: this point refers to the public and private institution interventions in the EIA procedure. d) The post-evaluation: was one of the most important novelties forwarded by the new legislation which goes well beyond the minimum standards of the Directive. The EIA procedure does not now end with the respective decision: for the EIA to be complete it is still necessary to control the conformity of the project’s execution with the EIA’s results. Still in regard to the procedure one can verify that the phased procedure foreseen in a legislative proposal publicly discussed in 1999 was not consecrated in the new EIA regime. The phased procedure (with two EIA phases) would be applied to projects whose licensing procedure or authorisation would include partial decisions of approval of a previous study and execution project. The new legislation foresees the possibility of the EIA referring to a previous study or a previous project and establishes a rather complex regime, with some loopholes relative to the verification of the conformity of the execution project with the IAD (Impact Assessment Decision) handed down in the EIA which was done in the previous study or project phase. In point 4, the article considers the IAD. The Environment Ministry continues to be the competent authority for its emission. One can note here the most significant novelty of the new legal regime. The legal force of the IAD is now greater. Therefore a unfavourable IAD is now binding and determines the refusal to licence or authorise the project. The role of the EIA and the Environmental Ministry is in this matter is greatly reinforced. In the same manner, the new legislation foresees that the administrative acts that are practised contrary to the IAD are null. It is a solution worth underlining in view of the fact that in Portuguese law the general rule for an invalid administrative act is its annulation. A strong criticism is made towards the authors of the rule that establishes the tacit approval of the IAD: in the case where nothing was communicated to the licensing or competent entity for approval within the foreseen timetables, the IAD is considered to be favourable and therefore the project can be approved. It is a paradox to foresee an approval in the case of the competent entity’s silence for a EIA decision in a regime where a negative decision is always binding. In point 5, the article considers the trans-national impacts of the EIA and the impacts on other member states. Here there are some minor faults in the directive transposition especially in what refers to the information that should be transmitted to other member states that could be potentially affected. Finally, the norms relative to verification and sanctions were studied in regard to the novelties introduced relative to the responsible organs within this scope underlining the functions attributed to the General Inspection of the Environment. The small increases in the fines foreseen are criticised namely when compared to the ones proposed at the time of the public discussion.
URI: URI:http://hdl.handle.net/10316.2/5719
ISSN: ISSN:0874-1093
Appears in Collections:RevCEDOUA A. 3, nº 5 (2000)

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