On July 13 the Parliament adopted draft law no. 8410, amending the law of Ukraine “On Environmental Impact Assessment”. The draft law as a whole is aimed at improving the procedure for assessing the possible impact of individual projects and plans on the environment. However, some issues of the draft law, in particular regarding the refusal to provide a conclusion and the grounds for recognizing the planned activity as inadmissible, caused business concerns about the potential increase in the administrative burden as a result of its adoption, and in this important aspect, the practice of application will act. In this issue, we will briefly review the main changes.

Consultations with public authorities and local governance during the EIA procedure

The law in question introduces a new type of consultations that are conducted in the framework of EIA procedure – now the authority, responsible for environment impact assessment, conducts not only public consideration of the report on EIA, but also holds consultations on the EIA report with relevant state authorities and representatives of local governance. Such consultations are held during the period of public consideration and may impact the EIA opinion in general. Information on the results of these consultations is published in Unified Register for Environmental Impact Assessment on the day following the last day of public consideration.

Amendments concerning public consideration of the report on the environmental impact assessment procedure

The main part of the amendments to be soon introduced into the EIA procedure after the signature of the adopted law concerns the procedure of public consideration of the report on environmental impact. Requirements regarding its publication are changed – according to the new version of article 4, the notice of the planned activity subject to assessment and the announcement of the start of public discussion must be published: 

• in electronic form: on the official website of the Unified Register for Environmental Impact Assessment, the websites of district state administrations, and relevant local self-government bodies, as well as by mailing to persons registered in the Unified Register (placed by an authorized body); and (or)
• in paper form: on the bulletin boards of local self-government bodies (placed by an authorized body); at least in three public places on the territory where the corresponding activity is planned, as well as in administrative-territorial units that may be affected (placed directly by the business entity), or if business considers it necessary – in print media which are distributed in the settlements where the planned activity will be conducted and which will be impacted by it.

The law changes the timeframes for the public consideration of EIA reports by decreasing the period provided to the competent authority for publication of the announcement of the beginning of public consideration (from 3 to 1 working day), providing comments and suggestions from the public is proposed to be reduced (from 20 to 12 working days), and for providing conditions regarding the scope of research and the level of detail of information by competent authority (from 30 to 15 working days). 

An important amendment concerns the issue of holding public hearings – in case if less than 10 persons are registered for public hearings they are held in the format of videoconference.

In addition, if the public requests to provide a printed copy of the EIA report, the business entity should provide it free of charge within two days of receiving such request.

Grounds for refusal in issuing an environmental impact assessment opinion and declaring planned activity inadmissible

The draft law proposes to specify the grounds for providing an environmental impact assessment opinion, which determines the inadmissibility of the planned activity, as well as to establish the grounds for refusing to provide an opinion. 

Thus, Article 9 is proposed to be supplemented with a new part 7, which provides for the provision of an environmental impact assessment opinion in which the inadmissibility of the planned activity is determined if prohibitions or restrictions provided for by laws are found that make the planned activity impossible, or if even if the necessary measures are taken, the impact of the planned activity will be such that it will be impossible to conduct it in accordance with the requirements of the law. 

It is also proposed to supplement the Law with the new article 9-1, which establishes the grounds for refusing to issue an environmental impact assessment opinion (essentially, returning documents for revision), namely:

• the grounds stipulated by the Law of Ukraine "On the permit system in the sphere of economic activity";
• violation of the requirements for the publication of a notice of the planned activity and requirements for the publication of the notice on the start of public consideration of the EIA report, and/or the placement and provision of access to the EIA report and other documentation necessary for the environmental impact assessment, as well as the recognition of public hearings as having not taken place due to the non-appearance of the business entity;
• non-compliance of the provided documents with the requirements of the environmental protection legislation and/or the requirements of the legislation in other areas, if such requirements relate to the impact on the environment;
• violation by the business entity of the requirements to take into account the comments and proposals of the public, provided in the process of public consideration of the scope of research and the level of detail of information to be included in the environmental impact assessment report.

Special regulations for the period of application of martial law

When it comes to current challenges, related to application of the martial law, the law introduces certain exemptions for this period. 

Firstly, restoration works aimed at repairing damage caused by armed aggression against Ukraine during the martial law application period are exempted from the EIA procedure. 

Secondly, public hearings during this period are held in the format of videoconference. For territorial communities, which are occupied or situated on the territory of active battles EIA procedure is not held and opinions are not issued. If a business entity needs such an opinion for the activity on such territories, it may initiate the procedure – but only in case state authorities are functioning on such territory and there is a possibility to hold such an assessment. These provisions will enter into force on the day following the publication of the law.

Transition to the new system

As new approaches to the publication of announcements regarding the beginning of the public consideration, as well as the publication of the reports require the submission of information in a new format, it is necessary to adapt Unified State Register to this format and adopt relevant by-laws. Therefore, it is provided that the law enters into force after five months from the day of its official publication.

At the same time, the draft law provides for the continuity of the EIA procedure during transitional business relations. The law provides a mechanism by which those EIA procedures that were started in accordance with the current version of the law could be completed, and not simply rejected due to changes in the legislation. If a business entity submits the report on the EIA and an announcement about the start of the discussion of the report or a notice of planned activity before the date of entry into force of this Law, they are considered in the order that was in effect at that time. At the same time, in the case of submitting an announcement about the planned activity before the law enters into force, the subject has the right to submit an announcement about the start of public discussion and a report on EIA in accordance with the procedure that is in effect at the time of submitting the report - without the need to submit a new announcement about the planned activity.