New Law on Environmental Impact Assessment in the pipeline: A step forward in harmonization with the EU acquis

The Serbian Government is preparing a new Act on Environmental Impact Assessment[1] (“Draft EIA Act“) with the aim to further harmonize the existing environmental impact assessment (“EIA“) regulatory framework with that of the EU, which has been so far lagging behind the EU acquis, as well as to integrate the appropriate assessment procedure from the nature protection regulations into the EIA process.

Key novelties
EIA procedure will have to be performed before the development consent is issued

The existing EIA Act requires that the EIA procedure is completed before the project implementation begins. This means that construction permit for a project can be issued even before the EIA procedure is completed, and that only the commencement of works under the construction permit is conditioned with the completed EIA procedure (consent to EIA study or decision that no EIA is needed). Draft new law proposes to make a significant shift by mandating that the EIA procedure be completed before the issuance of construction permit. Such change, if adopted, will inevitably require changes to the existing construction regulations.

No more salami slicing tactics

Draft EIA Act provides that EIA is required for the projects that either alone, or jointly with other implemented, approved or planned projects, may have significant effects on the environment, inter alia, due to their nature, size or location, or on the conservation and integrity of the ecological network. The aim is to prevent project developers from escaping EIA process by splitting the project, which as a whole would require an EIA, into small scape projects which, taken individually, do not require EIA process.

Appropriate assessment process (if applicable) is integrated into the EIA process

The existing Act on Nature Protection requires that appropriate assessment be performed in case a strategy, plan, fundaments, programs, projects, works or activities are likely to affect conservation and integrity of ecological network. However, this process has not been fully operationalized due to the lack of necessary bylaws and the fact that the existing EIA Act does not go hand in hand with the Act on Nature Protection in relation to appropriate assessment. Draft EIA Act aims to make the appropriate assessment process operational and fitted into the EIA process.

Assessment of Draft EIA Act 

Overall, the draft EIA Act promises to enhance the environmental impact assessment process. There are, however, aspects of the draft that need brushing-up.

Provisions on the competence for EIA process should be clarified

In relation to the competence for performing EIA procedure, Draft EIA Act refers to the state bodies competent for the issuance of development consents. However, the notion of development consent includes not only construction permits and similar consents, but also various conditions which serve as a basis for the issuance of construction permit or an analogue. Such underlying conditions may be within the competence of an authority different from the authority in charge of the construction or other type of final permit for the development. Accordingly, it is not enough to refer to the bodies competent for development consents but the Draft EIA should instead refer to the authority competent for a specific type of development consent(s).

Transitory provisions should be improved

Transitory provisions of the Draft EIA do not address the status of the ongoing projects for which the development consent will have already been issued under existing EIA Act before EIA process will have been completed. Transitory provisions also do not clarify whether the old or new EIA regulations will apply in case of modification of the projects which have been permitted under the present EIA regulations. Clarifications to that effect are necessary to ensure legal certainty to developers of the pending projects.

[1] In parallel, the Serbian Government is also preparing a new Act on Strategic Environmental Impact Assessment, which pertains to environmental impact assessment of various plans and programmes.