The UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)
Date of Signature : 25 February 1991
Entry into Force : 10 September 1997
Parties to the Convention: Parties as of October 2009 (as a map)
Geographic Scope: Regional - UNECE (see a map)
Current classification of CO2 under the Convention: not a regulated substance Current status of CCS under the Convention: not a regulated activity.
What are the aims and requirements of the Convention?
The Espoo Convention's primary aim is 'to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities'. The Convention requires states to carry out an environmental impact assessment (EIA) for all activities listed in Appendix I which are 'likely to cause significant adverse transboundary impact' in another state. The EIA, which is defined as a 'national procedure for evaluating the likely impact of a proposed activity on the environment', must be carried out before any decision to authorise or undertake the proposed activity and must include a series of elements listed in Appendix II (a description of the activity, of reasonable alternatives, of the environment likely to be affected, of the potential impacts and of mitigation measures to minimise the impact, etc). The state of origin must also ensure that affected states are notified of the proposed activity.
Appendix I includes, among other things, oil refineries, coal gasification plants, thermal power stations (above 300MW heat), large diameter oil and gas pipelines, trading ports, waste disposal installations for incineration, chemical treatment or landfill of toxic and dangerous wastes, offshore hydrocarbon production and major storage facilities for petroleum, petrochemical and chemical products. Any of the concerned states can also convene discussions on whether other proposed activities, not listed in Appendix I, are likely to cause a significant adverse transboundary impact and should be treated as if they were listed (subject to the agreement of all the states). Guidance on criteria to be taken into account in determining significant adverse impact is given in Appendix III (size of the activity, proximity to areas of specialised environmental sensitivity or importance, activities with particularly complex and potentially adverse effects, etc).
The state of origin must provide an opportunity to the public in the areas likely to be affected to participate in the EIA process and ensure that the public in other affected states is given the same opportunity. It is also under an obligation to notify, as early as possible in the process, any other state that might be affected by a transboundary impact. Due account must be taken of the outcome of the EIA, including any comments upon it and the outcome of consultations, when the final decision on the proposed activity is made.
As a supplement to the Espoo Convention, the Protocol on Strategic Environmental Impact Assessment (so-called Kiev Protocol) was adopted in May 2003 and entered into force on 11 July 2010. The aim of the Protocol is to ensure that environmental considerations, including health, are thoroughly taken into account, not just at the level of individual projects, but also earlier in the policy making process, at the point where plans and programmes are being developed. It further encourages the contracting parties to consider environmental and health concerns when they are preparing policies and legislation, although this latter step is not mandatory.
In order to achieve these objectives, the Protocol requires contracting parties to carry out a strategic environmental assessment (SEA) for plans and programmes which are prepared for specific activities (for example energy, industry including mining, transport, waste management, water management or land use), where these set the framework for future development consent for projects listed in Annex I to the Protocol and any other project listed in Annex II which requires an EIA under national legislation. Strategic environmental assessment is defined as the 'evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan and programme'.
Key legal issues concerning CCS
The Espoo Convention does not address CCS and the need for an EIA with respect to CO2 transportation. However, this Convention would be relevant in the event of a possible extension of its scope in order to include CCS activities. Thus far, Contracting Parties have not included this possibility within their agenda, and no discussion can be foreseen before 2011, when the next session of the Meeting of Parties to the Convention is scheduled.
Annex I of the Convention lists activities where an EIA is compulsory. These include 'large-diameter oil and gas pipelines'. As a result, pipelines for transporting CO2 for the purpose of CCS do not legally require an EIA to be undertaken. Nonetheless, in the light of the recent amendment of the EU EIA Directive, which now includes CO2 pipeline infrastructures within its scope, an amendment to Annex I would be a realistic option.
Any state that is a Party to the Convention, which is affected by an activity can in any case propose that an unlisted activity be subject to the Convention's requirements and convene discussions with the state of origin to that end.
EU Member States are required to make the above-mentioned changes to their legislation implementing the EIA Directive by 25 June 2011, in order to extend its scope to CCS. From that date, they will have to apply the EIA Directive to CCS and, if a CCS project is likely to have a significant environmental impact in another EU Member State, they will then have to follow a transboundary procedure - the so-called 'Espoo Procedure'- under Article 7 of the EIA Directive. The Espoo Procedure seems also likely to be applied to CCS projects that might have a transboundary impact upon non-EU Members.