EIA procedure under martial law: what should businesses expect?

The environmental impact assessment (EIA) procedure is mandatory for most types of planned activities before starting work. At the stage of geological exploration, each company must understand all possible environmental impacts and predict the most optimal conditions for the use of subsoil with an acceptable environmental impact.

Geological Investment Group LLC specializes in conducting EIA procedures in the field of subsoil use. We work closely with business and therefore have the opportunity to see all the problems faced by enterprises both on a daily basis and now, during the war period.

Today, the best strategy and support for business would be decisions made by the state, taking into account the real needs of subsoil users and investors.

How is the EIA process going today?

Taking into account the war in Ukraine, businesses are increasingly forced to urgently re-plan their activities or even relocate their enterprises to more safe regions of the country. But, in addition to the urgent change in the location of the planned activities or a change in the business strategy in general, there is an acute issue of simplifying the procedure for obtaining an EIA Conclusion by business entities.

The EIA procedure involves three main stages: notification of the planned activity, publication of the report with the announcement of the start of public discussion, and obtaining a conclusion.  

The key element is that the EIA procedure involves the public as an important element and lever of influence, whose opinion must be taken into account. However, in practice, the communities directly located in the vicinity of the planned activity do not take an objective part in the discussions.

According to the current legislation, the EIA procedure lasts at least 120 days. Despite the timeframe specified in the Law, the procedure actually takes at least 6 months, and it often happens that the process requires a year of research before it is uploaded to the Unified Environmental Impact Assessment Registry (EIA Registry).

In times of war, such expectations are unacceptable and need to be changed. This course of action is not conducive to the economic development of the state.

Now, in critical conditions, when logistics chains are disrupted, companies are forced to change raw materials, which affects the qualitative and quantitative volumes of waste generation and pollutant emissions, and formally constitutes grounds for EIA. 

In the current environment, it is clear that some of the timeframes for reviewing cases can be reduced. This way, large budget-forming enterprises will be able to operate without interruption, providing jobs for citizens and paying taxes to the state and local budgets.

EIA: legislation

Ukraine has consciously moved away from the Soviet model of legislative processes and has adopted the Law of Ukraine “On Environmental Impact Assessment”, which is part of European legislation. 

Currently, we are working in accordance with the Resolution of the Cabinet of Ministers of Ukraine №1026 dated December 13, 2017 “On Approval of the Procedure for Transferring Documents for Providing an Environmental Impact Assessment Conclusion and Financing an Environmental Impact Assessment and the Procedure for Maintaining the Unified Environmental Impact Assessment Registry”.

It is worth to mention that on July 13, 2021, the Verkhovna Rada registered draft laws №5766 and 5766-1 to improve the EIA procedure, and they are still under consideration. After reviewing these documents, it becomes clear that they contain both positive changes and certain restrictions that require a more detailed analysis.

The registered draft laws propose to improve the environmental impact assessment procedure, in particular, the transition to electronic document flow in the EIA procedure.

The main idea of such draft laws is to find a compromise between the efficiency of the EIA procedure, the validity of conclusions, and the consideration of business interests.

The possibility of exchanging information between the subsoil user and the authorized central bodies and authorized territorial bodies is also a positive aspect of the draft law. As we often have experience with the obligation to conduct an additional EIA, while it is possible to correct inaccuracies or technical errors in the report and submit additional information without wasting time, which carries financial burdens for business.

Among the main risks for subsoil users in these draft laws is the Emerald Network, which may restrict subsoil use and, in some cases, prohibit it. In particular, sand and gravel raw materials and other minerals such as sand and loam are quite common, and their deposits are overwhelmingly and often located within the Emerald Network. Of course, the “silence season” and partial restrictions in some areas should be taken into account. Such a ban could lead to illegal mining and an increase in corruption.

Business needs efficient solutions

In our opinion, the possibility of using an electronic signature to approve a contract for public hearings should be included as soon as possible. After all, the approval of an agreement with the Ministry currently takes up to two months.

In addition, paper versions of reports should be converted into electronic versions. For example, they can be posted on the website of the Department or Ministry of the relevant region, and the EIA Conclusion itself should be converted into an electronic version of the document for further use in the activities of enterprises. 

Since EIA is carried out taking into account the regulatory methodologies in force in Ukraine for calculating and predicting the impact on certain environmental factors, it is important to record an exhaustive list of methodologies that do not contradict each other.

If the legislation in the field of subsoil use is changed, we are talking about the Resolution of the Cabinet of Ministers of Ukraine №615 dated 30.05.2011 (as amended), it would be logical to amend the EIA Law in terms of linking the Conclusion not to the business entity, but directly to the object (subsoil site).

At the same time, there are still a number of issues regarding the EIA procedure that need to be resolved:

– Simplification of the process of preparation, 

– writing and calculation for the report developers, namely, involvement of the Ministry of Education and Science of Ukraine and the Ministry of Environmental Protection and Natural Resources of Ukraine in the development of methodologies and guidelines for calculating environmental impacts;

– avoiding the need to undergo several EIA procedures within the framework of one project;

– optimization of the timeframe for obtaining an EIA conclusion as a permitting document before starting work;

– the grounds for refusal to issue an EIA conclusion are not clearly defined by law. For example, the term “inaccurate information”, which is often used in the “Decision to refuse to issue an EIA conclusion”, is not reflected in the terminology of the legislative documents and can be interpreted ambiguously.

The EIA procedure should be changed, as the impact of the activities of budget-forming enterprises is less harmful than the consequences of the bombing of areas by the occupying forces. At the same time, it is necessary to eliminate all risks of a repeated EIA procedure for subsoil users after the end of martial law.

It is important to take into account all aspects of the current situation, this applies to both the current legislation in the field of subsoil use and the adaptation of legislative bodies and subsoil users in the EIA procedure under martial law in Ukraine.