Learning from transboundary environmental impact assessment under the Espoo Convention: a case of the Neman Hydropower Plant, Belarus

Abstract

Transboundary environmental impact assessment (TEIA) is becoming widespread; however, there is still little evidence about its implementation and usefulness in countries in transition, especially where TEIA builds on the convergence of distinct environmental assessment systems. This paper reviews the performance of the Belarusian–Lithuanian TEIA of the Neman Hydropower Plant in order to identify and discuss its strengths and weaknesses across various organizational and procedural aspects and to make suggestions for improvement. The Espoo Convention proved to be capable of bridging two assessment systems. Certain difficulties with implementing some of its provisions were tackled in a doing-by-learning manner. The greatest problems were associated with the lack of screening practice in Belarus, delayed assessment process undermining its usefulness, misunderstanding of what informal cooperation stands for and what constitutes a ‘final decision’, and limited collaboration in establishing a time frame and duties. The paper suggests learning from these issues and the solutions found.

Keywords::

• transboundary environmental impact assessment
• evaluation of TEIA process
• Espoo Convention
• Neman Hydropower Plant
• Belarus
• Lithuania

Introduction

Transboundary environmental impact assessment (TEIA) addresses environmental and socio-economic impacts of planned projects stretching beyond national borders. Although a useful concept, it is often constrained by differences in legal provisions, jurisdictions and environmental assessment and planning practices of neighbouring countries (UNECE 2006a). One of the primary international instruments to help regulate these issues is the Convention on EIA in a Transboundary Context, 25 February 1991.

The last decade has seen several publications exploring various aspects of TEIA and the application of the Convention in general [e.g. Marsden & Koivurova 2011, issue 4 of 26th volume of the Journal of Impact Assessment and Project Appraisal (2008)]. Only few of these examine the Convention implementation issues in countries in transition [e.g. Makarenko 2012; Review of Implementation of the Espoo Convention for 2006–2009 (UNECE 2011)], and almost none looks into assessments conducted on the convergence of two distinct environmental assessment systems – a classical western-style EIA and a combined system of State Environmental Review (SER) and EIA (abbreviated in Russian as ‘OVOS’) practised by most post-Soviet countries.

This paper, therefore, aims at contributing to knowledge on the application of the Convention and enhancing the currently limited understanding of how the Convention works in cases where different EIA systems are involved. To achieve this, the Belarusian pilot TEIA process of the Neman Hydropower Plant (HPP) is examined with reference to the Espoo Convention.

Environmental assessment in Belarus

Following the collapse of the Soviet Union in 1991, the independent Republic of Belarus adopted its own environmental legislation, including two major environmental assessment laws: ‘On Environmental Protection’ (Law of the Republic of Belarus on Environmental Protection No. 1992-XII, 26 October 1992, last amended in 2013) and ‘On SER’ (Law of the Republic of Belarus on State Environmental Review No. 54-Z, 9 October 2009, last amended in 2011), and relevant by-laws, e.g. OVOS Regulation and SER Regulation, Ordinance No. 755, Council of Ministers of Belarus, 19 May 2010.

OVOS is mandatory for any economic and other planned activity that is likely to have adverse environmental impacts. The list of such activities is established by law. The developer of such activity is obliged to conduct OVOS, which includes scoping, preparation of the assessment report, public disclosure and consultations, revision of the report and its submission, among other documents, to the SER. The SER reviews the compliance of design and OVOS documents with environmental regulations. It is organized and financed by the Ministry of Natural Resources and Environmental Protection (MoE) of Belarus or its regional branches. Subsequently, the SER authority issues a resolution that can be positive, positive with approval conditions, or negative.

Espoo Convention in Belarus

Belarus ratified the Convention in February 2006 and its First Amendment in 2011. The TEIA of the Neman HPP is the first project undertaken by Belarus as a ‘Country of origin’ under the Convention. Previous experience of Belarus was restricted to its passive participation in assessments lead by Lithuania and Poland.

According to the Concept of Energy Security of Belarus (2007), the Neman HPP is only the second out of seven HPPs planned on transboundary rivers: the Neman flowing to Lithuania and the Zapadnaya Dvina flowing to Latvia. Thus, the lessons drawn hereby may help TEIA practitioners and users, both in Belarus and in its neighbouring Poland, Russia, Ukraine and, specifically, Lithuania and Latvia to learn for future practice.

Neman Hydropower Plant

The project proponent – Grodno Republican Unitary Enterprise of Electrical Energy (‘Grodnoenergo’) – commissioned a feasibility study of the Neman HPP in 2008. The draft OVOS for the feasibility study was prepared the same year. In July 2010, the MoE examined the OVOS report and issued a positive resolution with approval conditions. Grodnoenergo is presently (mid-2013) considering co-investment proposals to construct the plant.

The Neman HPP is planned to be constructed on the Neman River, 20 km downstream Grodno town (Belarus) and 20.5 km away from the border with Lithuania. The facility will encompass a HPP building, a by-wash, a reservoir (with a volume of 38 million m3, a surface area of 720 hectares, a maximum width of 630 m, a length of 38 km, and an average depth of 5.2 m), communication lines and operation buildings, three earth dams with the total length of 3 km, a ship gateway, fish passes, three drainage pumping stations, penstock and outflow water channel (TSNIIKIVR 2008). The envisioned capacity of the plant is 19.8 MW (to be the largest HPP in Belarus), and the projected annual energy generation is 85 million kWh (Grodnoenergo 2013). The maximum water-level difference between the upstream reservoir and downstream river levels is 9 m. The maximum forecasted inundation area is up to 590 hectares.

Method

Data gathering and analysis methods recommended for qualitative variable-oriented case-study research include literature review, interviews, consultations and systematic analysis against the selected variables (e.g. Miles & Huberman 1994). Accordingly, this review employed the following methods:

• Review of the HPP-specific and context-specific documents, guiding documents to the Convention and publications on TEIA;

• Eight semi-structured interviews with the officers of the competent–contact authorities (SER Department of the Belarusian MoE and EIA Division of the MoE of Lithuania), key authors of the OVOS report, a Lithuanian expert who commented on the draft OVOS report, and those representatives of environmental non-governmental organizations who attended public hearings in Belarus and Lithuania;

• Validity check of the preliminary findings via consultations with the participants of the TEIA seminar and conference held in Belarus in November and December 2010,1 respectively (the consultees included the representatives of various Ministries of Belarus, Belarusian Academia and environmental associations);

• Review of the assessment process against the below organizational aspects and procedural steps derived from the provisions of the Convention and its guidance documents on notification (UNECE 2009), public participation (UNECE 2006b), and practical application (UNECE 2006a):

  		▪ Organizational aspects – Financial liabilities – Distribution of responsibilities – Agreed time frame – Informal cooperation
  		▪ Procedural steps – In-country notification – TEIA screening decision – Notification – Confirmation of participation – Request for baseline information – Preparation of EIA documentation – Transmittal of EIA documentation – Authority-level consultations – Disclosure of information – Public participation – Consideration of public opinion in final decision-making – Transmittal of a final decision.

Performance of the Neman HPP TEIA

The below sections present the review of the Neman HPP's TEIA process with reference to the Espoo Convention, focusing on successes and problems encountered by the actors.

Organizational aspects

Financial matters

Making early financial arrangements is recommended in order to enable all actors to realize their financial liabilities and reserve funds needed (Clause 34, UNECE 2006a). The interviews revealed that the countries had agreed on financial liabilities when negotiating their obligations within the framework of the draft bilateral treaty under the Convention. Each Party agreed to bear the costs of organizing public hearings, disseminating information via mass media in its territory and travelling and participating in consultations/hearings. Financing the preparation and translation of the TEIA report was the obligation of the proponent. In carrying out the assessment of the Neman HPP, the Parties adhered to the agreements. In addition, as part of their ongoing environmental assessment capacity-building programmes, the United Nations Development Program (UNDP) and Organization for Security and Cooperation in Europe (OSCE) sponsored several seminars on transboundary assessment with reference to the Neman HPP.

Distribution of responsibilities

Clear rules of procedure with clearly identified responsibilities to organize a TEIA help in lessening the scale of difficulties due to differences in legislations and practices (Clause 9, UNECE 2006a). When negotiating bilateral arrangements to operationalize the Convention, the Parties attempted to allocate general organizational and coordinational duties; however, these did not extend to all procedures under the Convention. This became obvious when Belarus entered the final assessment steps and found itself uncertain about whether it had to notify Lithuania of the SER resolution. Thus, while the Parties were guided by overarching agreements, fulfilling specific obligations was impeded by limited, if not lacking, discussion of case-related issues.

Reasonable time frame

A reasonable and clear time frame for the whole process and its separate steps should be agreed at the outset of assessment (Clauses 37 and 39, UNECE 2006a). General timing was preliminarily discussed between Belarus and Lithuania; however, they did not cooperate to work out a specific schedule for the Neman case due to the lack of initiative from the Party of Origin. The interviews showed that decisions about the timing of some procedural step were taken spontaneously, with little consideration of another Party's opinion. Consequently, being unclear about the timing of certain steps, the Parties happened to act under uncertainty. Overall, the TEIA process was delayed with its steps taking longer than expected. It could have remained uncompleted if the ambiguity about what a ‘final decision’ is had not been resolved (see ‘Transmittal of final decision’).

Informal cooperation

Guiding documents on public participation and practical application promote informal negotiations and contacts between the involved Parties and stakeholders (UNECE 2006b, 2009). Having acknowledged the value of informal cooperation, the Belarusian competent–contact authorities attempted to stimulate it both within the country and beyond. The informal cooperation among in-country stakeholders proved to be quite effective. No informal communication was found to be in place between the officials of the Parties. Contacting the Lithuanian authority by the Belarusian developer was considered by the former as inappropriate and complicated the communication instead of benefiting it (see ‘Notification’).

Procedural steps

In-country notification

To be able to initiate a TEIA, relevant national authorities should be timely informed about cases that may have transboundary impacts (UNECE 2006a). The possibility of constructing HPPs on the Neman has been discussed in Belarus since the late 1990s. In 2007, this aspiration was articulated in the Concept of Energy Security of Belarus. The competent authority was therefore already aware of the potential development when, in 2008, the developer notified it of the start of the planning. As in Belarus the competent authority serves as the point of contact, the information about the proposed Neman HPP reached it in due time.

Screening

The fourth meeting of the Parties to the Convention (UNECE 2008) recommended Belarus to conduct capacity-building workshops based on pilot TEIAs. It is following this recommendation that the local competent–contact authorities screened all the planned and ongoing assessments per the Convention and selected the Neman HPP to serve as a pilot TEIA. It should be noted that by that time, the competent–contact authorities had already completed the screening under national law and approved the Terms of Reference for the OVOS. Thus, the screening process under the Convention was undertaken late, but not critically late from the Convention's viewpoint; i.e. before the OVOS report was disclosed to the Belarusian public.

Notification

Transboundary assessment is initiated through a formal notification sent by official Points of Contacts/responsible authorities of a party of origin to any affected party as early as possible (Article 3 of the Convention, UNECE 2006a). Informal pre-notification contacts allow each Party to prepare for the coming process (UNECE 2006a). Both informal and formal notifications can be distinguished in the pilot case. In January 2009 (nine months after the OVOS report was prepared), the developer, upon the consent of the MoE of Belarus, sent two notifications to the MoE of Lithuania. The letters contained the information about the project, the assessment report in Russian and a request to submit comments within a month. In response, Lithuania requested the MoE of Belarus to initiate a formal assessment process and to provide information in the Lithuanian language. Lithuania also informed Grodnoenergo about its intention to participate in the formal TEIA and impossibility to provide comments within the specified short period.

In June 2009, the MoE of Belarus sent formal notifications to the Points of Contacts in Lithuania and Russia,2 with the draft OVOS reports in Lithuanian and Russian attached. However, deadlines for reply/commenting were not specified. Thus, the notice did not contain the minimum recommended information (UNECE 2009). Three weeks later, upon consultations with the Convention's Secretariat and representatives of Lithuania and Russia, the MoE of Belarus sent a supplement letter to these countries indicating a deadline for commenting and contact information for submitting comments.

While the formal notification was issued after the assessment report was completed, its timing still complied with the Convention in that it was sent prior to the national public disclosure. Yet, the notification procedure appeared to be lengthy as it lasted from January to June 2009. Omissions in the format and content of the notifications were corrected as the TEIA proceeded.

Confirmation of participation

The Convention prescribes that the affected party shall respond to the party of origin within the time specified in the notification, acknowledging receipt of the notification and indicating whether it intends to participate in the TEIA (Article 3(3)). This provision, in essence, was fulfilled twice: Lithuania notified Belarus of its readiness to participate in the assessment upon receiving both the informal and formal notifications. Russia did not respond to the notification of Belarus.

Request for baseline information

Upon the request of the party of origin, the affected party should provide the former with the obtainable baseline information (Article 3(6) of the Convention). This step is also connected with the consultations to be held between the parties on the scope and objectives of assessment (UNECE 2006a). In Belarus, the pilot TEIA started a year after the OVOS report was prepared. The availability of the OVOS report rendered the request for baseline information and ‘scoping’ consultations irrelevant. These omissions could have been considered significant if Lithuania had expressed concerns about the lack of scoping consultations or baseline data on natural and socio-economic environments in its territory.

Preparation of EIA documentation

The Convention lists the TEIA information to be, as a minimum, submitted to the competent authority of the Party of origin (Appendix II to the Convention). The review of the OVOS report by the author showed that it did not include all of the required components. In particular, no consideration was given to the description of forecasting techniques and underlying assumptions, methods for determining the impact significance and the associated assumptions and judgements. Some other elements appeared to be incompletely covered in the report, thus only partially meeting the provisions of the Convention; i.e. a description of the proposed activity (and its life cycle) and baseline socio-economic conditions; evaluation of socio-economic impacts; mitigation measures; and measures to monitor the affected environment and the effectiveness of mitigation.

The OVOS report's strong facets included a description of baseline environmental conditions and potentially affected environmental components, an assessment of probable accidents and their consequences, an analysis of alternatives, a direct and objective presentation of information (e.g. adverse impacts are not disguised), a clear structure of the report and a clear non-technical summary.

The OVOS report as such had no reference to the Convention. This reasonably implies that the Convention was not considered in preparing the OVOS. Meanwhile, according to Belorussian law, the Convention, being an international treaty, shall prevail over national regulations. This omission is partly explained by the fact that the decision to initiate the TEIA was imposed by external triggers and taken late in the national assessment process.

Transmittal of EIA documentation

The point of contact of the party of origin should provide the affected party with the relevant OVOS documentation (Article 4 of the Convention). The Belarusian pilot case complied with this provision. The OVOS report was provided to Lithuania twice; i.e. informally (by the developer) in January 2009 (in Russian) and formally in June 2009 (in Lithuanian).

Authority-level consultations

The parties held two consultation rounds involving relevant authorities and experts. The first round took place two weeks after the formal notification, and the second round was held in Grodno (Belarus) with a view of discussing comments of the Lithuanian experts and the public (February 2010). Formal correspondence with regard to the OVOS report was highlighted by two milestones:

• The Lithuanian MoE forwarded the OVOS to the concerned authorities and experts, collected and compiled their comments, translated them into English,³ and sent them to the Belarusian party (August 2009).

• The MoE of Belarus sent a letter to Lithuania with responses to the received comments and a revised OVOS report (September 2009).

Disclosure of information

The Lithuanian and Belarusian environmental authorities disclosed the OVOS report to the public by posting it, in the relevant language, on their websites and on that of the Belarus MoE's local branch – Grodno Regional Committee for Environmental Protection.

In Lithuania, the availability of the OVOS report for review was publicized through local and Internet newspapers, blogs and sites of environmental associations. The consultation period commenced in July and lasted for about 70 days (i.e. two months before the public hearing and 10 working days after, per Lithuanian law).

The start of a 30-day public consultation period in Belarus was announced via the newspaper Grodzenskaya Pravda in January (paper edition) and February (electronic edition) 2010. Information about where and when the Belarusian public could access, review, comment on and get expert opinion about, the OVOS report was made available.

The OVOS documentation was overall disclosed in line with the provisions of the Convention.

Public participation

The public of the involved parties should have an equivalent opportunity to participate in relevant EIA procedures (Articles 2.2, 2.6, 3.8 and 4.2 of the Convention). The parties to the pilot case followed their national requirements in providing the public with relatively comparable opportunities via informing and engaging methods such as:

• launching consultation periods, disseminating information and collecting comments;

• advertising public hearings;

• sending individual electronic invitations to stakeholders (Lithuania);

• holding public hearings in Druskininkai town (Lithuania, September 2009) and Grodno town (Belarus, March 2010); and

• posting an extract from the positive SER resolution on the website of the MoE of Belarus (July 2010).

In Belarus, public participation was of a larger scale being supported by UNDP/OSCE-funded TEIA capacity-building events The drawbacks of the public participation scheme were that it was initiated late, i.e. a year after the draft OVOS report was prepared, the public hearing in Belarus was attended by only few non-state employees, and the Lithuanian public was not informed of the SER Resolution.

Considering public opinion in final decision-making

The Convention requires its Parties to ensure that the final decision on the proposed activity takes due account of the expert and public comments on the EIA report and the outcomes of consultations (Article 6.1). During the SER procedure, the competent–contact authorities of Belarus reviewed the project design and OVOS documents and comments of the Lithuanian and Belarusian experts and public and issued a positive resolution with approval conditions, thereby meeting the respective provisions of the Convention.

Transmittal of a final decision

According to the Convention (Article 6.2), the affected party should be provided with the final decision on the proposed activity alongside the reasoning behind it. During the November 2010 seminar in Minsk, the Lithuanian party found out that it was unaware of the positive SER Resolution issued by the MoE of Belarus in July 2010. The request of Lithuania to provide it with the Resolution was found to be unexpected by the Belarusian authorities as the latter did not regard the Resolution as a ‘final decision’, rather as a step in a sequence of decisions preceding the permitting decree of the President of Belarus. The ambiguity was resolved through discussion, and the Belarusian party handed the ‘final decision’ – the extract from the Resolution – to the Lithuanian representatives. The seminar thus proved to be a useful platform for resolving any issues impeding the finalization of the assessment.

Discussion and conclusion

The review revealed a number of strengths, resolved issues and weaknesses some of which were similar to the problems identified by earlier practice reviews in other countries (e.g. Schrage & Bonvoisin 2008). In terms of organizational aspects, the key strengths related to a good level of cooperation between Belarus and Lithuania on principal and minor financial matters. This was largely owing to a series of framework negotiations between the competent authorities. However, these negotiations were insufficient to tackle specific duty and timing issues. The practice shows that such issues require case-specific consultations. Other weaknesses related to limited understanding of the nature of informal cooperation and of the powers and roles of organizations versus authorities in the assessment process. In particular, the ‘informal’ notification from the developer was perceived by Lithuania as exceeding the competence of an organization and created some tension in the process. As such, the informal notification could have been more successful if the developer had more knowledge about, and the authority had better understanding of, the provisions of the Convention and the suggested patterns for informal communication.

The review of the procedure highlighted a timely notification of national competent–contact authorities, prompt confirmation of participation (in contrast to a frequent problem of the ‘lack of response’ (Schrage & Bonvoisin 2008, p. 235)), constructive authority-led consultations, proper disclosure of information and consideration of expert and public opinion in ‘final decision-making’. Furthermore, one of the frequent TEIA challenges, i.e. the lack of equity in public participation (Schrage & Bonvoisin 2008, p. 235), was avoided by providing the public in both countries with almost equivalent opportunities for participation, as legally required.

The parties appeared to be concerned with uncertainty about the essence and timing of some of TEIA steps. Other practical studies show that such concerns and uncertainties are not rare as with more than one country involved, coordination among different agencies, project proponents and affected communities becomes more complicated, and responsibilities are often unclear (Bruch et al. 2007). The transmittal of the final decision appeared to be especially problematic due to the different interpretations of a ‘final decision’. The Parties discussed this issue and, consequently, agreed on a mutually acceptable definition. This is illustrative of the willingness to cooperate and is an important step towards ensuring more effective future assessments.

The review also found that the implementation of the Convention was not impeded by the differences in environmental assessment systems of Lithuania and Belarus. Each country followed its national regulations and, during the consultations, demonstrated the readiness to learn about the regulations of another party.

Despite the drawbacks, the pilot TEIA for the Neman HPP is perceived as successful, especially in terms of better understanding of the Convention's requirements and enhanced mutual understanding of EIA legislation and procedures (Bonvoisin 2011). Belarus gained experience as a lead party in the assessment, which is invaluable given the planned developments with potential transboundary impacts. Remarkably, a series of seminars that accompanied the pilot case and involved international stakeholders from Lithuania, Ukraine and Poland allowed the process to become an example of reflective ‘learning-by-doing’ that is useful to countries with limited experience with the application of the Espoo Convention.

Based on the lessons learnt, the following advice could be offered to the TEIA practitioners in Belarus and its neighbouring counties or beyond:

• Build informal cooperation between (competent–)contact authorities while initially avoiding informal cross-communication between proponents of one party and authorities of another party;

• Reach consensus on case-specific time frame in order to reduce institutional uncertainty and process delays;

• Screen potential TEIA projects under the Convention immediately after the in-country notification per national assessment procedure;

• Ensure the notification of affected parties is content-, time- and effort-efficient (in the reviewed case, the notification procedure took about seven months);

• Initiate public participation process at scoping/Terms of Reference stage of assessment;

• Consider obtaining baseline data from the affected country depending on their usefulness for a specific case;

• Ensure that the EIA/OVOS report meets the minimum contents requirements of the Convention; and

• Provide the affected party with the opportunity to comment on the proposed scope of assessment and stakeholder engagement issues at the stage of scoping/Terms of Reference approval.

Acknowledgements

This paper draws on the research conducted by the author per individual contract with UNDP Belarus within the project ‘Building Capacity for Strategic Environmental Assessment and Environmental Conventions Implementation in Belarus’.

Notes

^1. The seminar ‘Experience of conducting TEIA on the example of the Neman HPP and discussion of the draft Espoo Convention guidance for Belarus’ (November 2010, Minsk); the conference ‘Compliance with the Espoo Convention in relation to projects having transboundary impacts and discussion of legal recommendations’ (December 2010, Minsk).

^2. Russia had not responded.

^3. As the response language was not agreed beforehand, the Lithuanian authority chose the language of its convenience.