Strategic Environmental Assessment At The Policy Level

viii/ Strategic Environmental Assessment at the Policy LevelPrefaceThe Protocol on Strategic Environmental Assessment (Protocol on SEA) was adopted by the Parties to the Convention onEnvironmental Impact Assessment in a Transboundary Context (the ‘Espoo Convention’)1 at their extraordinary meeting inKiev (Ukraine) on 21 May 2003. Thirty-five States and the European Community (EC) signed the Protocol in Kiev, with oneother State signing later. The Parties also adopted a Resolution on the Protocol that determined that a meeting of theSignatories should be held.For the first preparatory meeting for the first meeting of the Signatories to the Protocol, held in Geneva on 27-28November 2003, the UNECE secretariat prepared a background paper presenting possible elements for a workplan for theProtocol2. The UNECE paper described a number of possible activities that might be considered, among others, for inclusionin the workplan. The Protocol’s workplan was later incorporated within the workplan adopted for the Convention at the thirdmeeting of the Parties to the Convention, held in Cavtat (Croatia) on 1-4 June 2004.Among other issues, the activities described in the paper addressed the application of the Protocol to policies andlegislation. The Protocol allows for the application of SEA methodology to policies and legislation, though the provision isflexible: “Each Party shall endeavour to ensure that environmental, including health, concerns are considered and integratedto the extent appropriate in the preparation of its proposals for policies and legislation that are likely to have significant effectson the environment, including health” (art. 13, para.1). Nonetheless, Parties are required to report on their application of theprovision (art. 13, para. 4).The UNECE paper considered that those Parties wishing to consider and integrate environmental concerns in preparingpolicies and legislation might well require advice. Clear and simple advice was likely to do much to promote the applicationof the Protocol to policies and legislation. There was already considerable experience within the UNECE member States ofapplying SEA to policy and legislation, and thus extensive literature and guidance material were available.Though the Directive does not deal with policies and legislation, the European Commission’s intention was to subject allmajor policy initiatives (including regulatory proposals) to an assessment of their potential economic, social andenvironmental impacts, and it was preparing technical guidelines for implementation (which were due in September 2002)3.Impact assessment would be required for: “regulatory proposals, such as directives and regulations, and, in an appropriateform, other proposals such as white papers, expenditure programmes and negotiating guidelines for internationalagreements that have an economic, social or environmental impact.”The UNECE paper suggested that a very short questionnaire might be sent to UNECE Member States that already havelegislation or guidelines in place for the SEA of policies and legislation. This questionnaire might be used to identifyexamples of best practice in the application of SEA to policies and legislation, and to identify suitable guidance material fordistribution. The European Commission’s technical guidelines for SEA of major policy initiatives might also be promoted.Training events and workshops would be needed to develop skills in SEA methods for policies and legislation.The Signatories did not include the secretariat’s proposal in the Protocol’s workplan. However, this volume fulfils part ofthe proposal and provides material to promote the application of the Protocol to policies and legislation.The workplan did provide for the preparation of a capacity-development manual to support the implementation, andapplication, of the Protocol. However, at the time of writing, the draft manual provides only limited information on theapplication of the Protocol to policies and legislation. The workplan also provided for the analysis of capacity-building needsin Eastern Europe, the Caucasus and Central Asia.For the Protocol to enter into force, sixteen Member States need to ratify it (or accede to it, etc). At the time of writing,one Signatory had ratified the Protocol and there was an expectation that it would enter into force in 2006 or 2007. Once inforce, the Parties would meet within one year. At their first meeting, the Parties would be expected to adopt a new workplan,among other things, which might again be incorporated within the workplan of the Convention. The Signatories to theProtocol had yet to decide on activities to be included in the draft workplan, but some might wish to extend the content of themanual to address more fully policies and legislation, as a complement to this volume. It is expected that the development ofStates’ capacities to implement the Protocol will again be the focus of the workplan.1)2)3)The Convention was adopted in Espoo (Finland) in 1991 and entered into force in 1997. See http://www.unece.org/env/eia.UN document reference MP.EIA/AC.3/2003/2.European Commission, Communication from the Commission on Impact Assessment, COM(2002) 276 final (Brussels, 5 June 2002).

Recent Progress, Current Status and Future Prospects /ixFinally, UNECE Member States (from Canada and the United States of America, through Europe, to the Caucasus andCentral Asia) may become Parties to the Protocol pending its entry into force. However, once in force, other UN MemberStates may accede upon approval (by the existing Parties) to the Protocol, and several States have already indicated an interestin doing so.Nick Bonvoisin and Wiek Schrage4UNECE Secretariat5Geneva4)5)The views expressed herein are entirely those of the authors and these views should not be taken out of context or cited without prior permission. Theydo not necessarily reflect the views of the UNECE, its Member States, the Parties to the Espoo Convention or the Signatories and Parties to theProtocol on SEA.United Nations Economic Commission for Europe. See http://www.unece.org/.

x/ Strategic Environmental Assessment at the Policy LevelList of ContributorsElvis Au, Environmental Protection Department, Hong Kong Special Administrative RegionNick Bonvoisin, UNECE Secretariat, GenevaAlison Dalziel, Ministry of Economic Development, Wellington, New ZealandJiri Dusik, Regional Environmental Centre for Central and Eastern Europe, Szentendre, HungaryBo Elling, Roskilde University, DenmarkJon Fixdal, Norwegian Ministry of Environment, OsloMikael Hildén, Finnish Environment Institute, HelsinkiSimona Kosikova, Regional Environmental Centre for Central and Eastern Europe, Office for the Czech Republic, PragueJean-Roger Mercier, World Bank, Washington DCBarry Sadler, Victoria BC, CanadaWiek Schrage, UNECE Secretariat, GenevaMartin Smutny, Regional Environmental Centre for Central and Eastern Europe, Office for the Czech Republic, PragueIngvild Swensen, Norwegian Ministry of the Environment, OsloMari van Dreumel, Netherlands Ministry for Housing, Spatial Planning and the Environment, The HagueMartin Ward, Independent Environmental Advisor, Wellington, New ZealandGreg Wilburn, Environment Canada, OttawaRuth Wilkie, Department of Prime Minister and Cabinet, Wellington, New Zealand

Recent Progress, Current Status and Future Prospects /1Chapter 1Initial Perspectives on SEA at the Policy LevelBarry SadlerIntroductionIn the past ten years, there have been major advances in SEA process development and implementation. Currently, this fieldis in the midst of further change, particularly in the European Union (EU) where new supra national and international legalregimes have come into force or soon will do so. The SEA Directive (2001/42/EC)6 and the SEA Protocol to the UNECEConvention on EIA in a Transboundary Context (2003) have major implications for SEA practice in member states andsignatory countries, respectively. Many procedural requirements of the Directive and the Protocol are closely aligned and thisconvergence likely will promote a more standardised, EIA-derived approach to SEA of plans and programmes.A major issue in the negotiation of both instruments was the scope of SEA application, particularly in relation to policy,which is omitted from the Directive and included in the Protocol (together with legislation) only as a non-binding provision(although there is mandatory reporting by signatories). This issue is far from settled. Questions concerning the role of SEAin policy-making are likely to resurface, by design under a future work programme of Parties to the SEA Protocol7 or bydefault under the SEA Directive once plans and programmes ‘with policy intent or content’ become subject to assessment.In the interim, it may be useful to consider these developments in relation to broader trends and issues in SEA of policy,internationally.SEA practice at this level is still limited to a relatively small group of countries and international organisations, includingthose represented in this volume. Yet the number of such jurisdictions has increased markedly in the decade since the Hagueforum on SEA of policy (see foreword), which provided an early milestone of progress in this area (de Boer and Sadler 1996).Today, the body of comparable experience is far richer and more diverse, particularly if a broad view is taken of SEA. Beyonddesignated SEA systems, many other strategic instruments are now used in policy design and new approaches are emergingall the time. These instruments have the same aims but not necessarily all of the features and elements of SEA as formallyprescribed in Directive 2001/42/EC or the SEA Protocol.In this volume, the focus is on SEA systems and process that apply primarily or partly to proposals at the policy level,including draft bills and other legal acts. Key objectives are: to review the institutional arrangements that are in place in leading countries and international organizations; to identify their main features and elements of approach; and to draw lessons of experience from SEA implementation and, where possible, to benchmark good practice.As indicated in the title, the purpose of this chapter is to provide an initial overview of SEA at the policy level. First, itunpacks SEA terms and concepts and their relationship to policy-making. Second, it surveys our current understanding ofthe dimensions of policy with reference to SEA application. Third, it outlines evolving approaches to SEA of policy. Fourth,it annotates the opportunities and constraints for applying SEA to policy and law-making, and adapting it to theirparticularities. Finally, it summarises the rationale of this review and the organisation of the overall volume.SEA Terms, Concepts and Relationships to PolicySEA definitions are much like music: minor variations derived from a common theme and compressed into a narrow band widthMany definitions of SEA have been proposed and new ones continue to be introduced in the rapidly expanding literature onthe subject. For simplicity, these can be broken down into ‘generic’ and ‘procedural’ definitions of SEA. Both attempt to6)7)The full title is Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmeson the environment.The UNECE Secretariat has drafted an informal work programme for possible implementation by the Parties to the SEA Protocol(MP.EIA/AC.3/2003/3).

2/ Strategic Environmental Assessment at the Policy LevelBox 1: SEA approaches and their application to policySEA is interpreted broadly to include the following approaches: SEA as a formally prescribed process under legal or administrative arrangements established by countriesand international instruments Near-equivalent processes that correspond to SEA in their aims and elements of approach but are appliedinformally or flexibly as part of policy or law-making Para-SEA processes and elements, which have the same function as formal SEA processes but only someof their characteristics.Policy is understood as including the following areas: Legislation including draft bills, regulations, rules and agreements Government strategies, papers, memoranda or statements of intent that outline new policies or proposeddirections or options at the highest level, and Norms, guides, principles or arrangements that are understood or acted upon as if they were policy or law.Sources: adapted from Sadler (1994), Buckley (1998), Dalal-Clayton and Sadler (2005)capture the fundamental characteristics that are common to all forms of SEA; the former without reference8 and the latterwith reference9 to particular EIA-related elements as defining (such as preparing a written report). With regard to policy,‘procedural’ definitions of SEA may be considered as more restrictive in potentially excluding certain approaches that areused already or potentially apply at this level.Put simply, SEA is a proactive approach to integrate environmental concerns and standards of due care into policy andplan-making. It is best understood as a generic process that encompasses a family of tools and instruments with differentnames, forms and areas of application. This extended family can be grouped into three broad categories of formallyprescribed, near equivalent and para-SEA processes (Dalal-Clayton and Sadler 2005, see Box 1) and into various types ofapproach (e.g. Goodland 1998, Buckley 1998, Verheem and Tonk 2000). In most classifications, policy-level SEA isrecognized as a distinct area that covers the highest echelons of decision-making, including legislation, strategies andgovernment statements (Box 1).This form of SEA is further elaborated or extended in a number of concepts and terms that focus specifically on policy(Table 1). These include: strategic environmental appraisal, which denotes an informal, flexible approach, particularly suited to therealities of policy development (Sadler and Brooke 1998); policy environmental assessment, which distinguishes a separate process that includes social, cultural andeconomic issues andaccommodates both simple and comprehensive (EIA-derived) approaches (Bailey and Dixon 1999); strategic environmental assessment redefined as a process that focuses on a ‘holistic understanding ofenvironmental and social issues’and broadens policy-making beyond ‘issues that would be normally considered’ (Brown and Therivel 2000)10; policy assessment, which describes a process by which options are continuously identified and analyzed in termsof all higher level social goals (Boothroyd 1995); and8)9)10)For example: “SEA is a systematic process for evaluating the environmental consequences of proposed policy, plan or programme initiatives in orderto ensure they are fully included and appropriately addressed at the earliest appropriate stage of decision-making on par with economic and socialconsiderations” (Sadler and Verheem, 1996).For example: “The formalized, systematic and comprehensive process of evaluating the environmental effects of a policy, plan or programme and itsalternatives, including the preparation of a written report on the findings of that evaluation, and using the findings in publicly accountable decisionmaking” (Therivel et al, 1992, 19-20).The full definition proposed by Brown and Therivel (2000, 184) reads as follows: “SEA is a process directed at providing the authority responsible forpolicy development (the ‘proponent’) (during policy formulation) and the decision-maker (at the point of policy approval) with a holistic understandingof the environmental and social implications of the policy proposal, expanding the focus well beyond the issues that were the original driving force fornew policy.”

Recent Progress, Current Status and Future Prospects /3Table 1: SEA terminology and concepts and their policy orientationParadigm/ levelScope and policy characteristicsStrategic environmentalassessmentStrategic environmental assessment (SEA) As currently instituted in law or policy,primarily focuses on the impact of policy, plan and programme proposals on theenvironment (defined broadly to include risks to human health as in the SEA Directiveand SEA Protocol)Strategic environmentalappraisal (SEA)Informal, flexible process of SEA for policy and plan-making. (Sadler and Brooke,1998). Applied specifically to UK system for policy appraisal and the environment; nowlargely incorporated into integrated policy appraisal or regulatory impact assessment(see Chapter 10)Policy environmentalassessments (PEA)Based on the premise that policies are different from plans and programmes. PEA usesboth EIA-based and rapid appraisal to identify their environmental impacts. It “shouldcover as many policy levels as possible and include implicit as well as explicit policies”(Bailey and Dixon 1999)Policy assessment (PA)Focuses on fundamental policy options. PA combines the functions of ‘policy vetting’to check consistency with ‘highest-level societal goals’ and impact analysis to addressany potential adverse consequences. In vetting, the focus is on ‘the big picture overdetails’ and ‘insights over rigour’ (Boothroyd 1994)Integrated assessment (IA)or sustainability appraisal(SA, also sustainabilityimpact assessment)Addresses environmental, economic and social effects, particularly valuable forweighing competing considerations of macro-policy initiatives (UNEP 2001). SA is anintegrated assessment that is carried out within an explicit framework of sustainabilityobjectives and criteria (Sadler 2002) or a structurally integrated assessment andplanning system (UNEP 2004). integrated assessment, which covers economic, social and environmental aspects of macro policies, particularlyfor trade and poverty reduction (UNEP 2001). This is one of a number of terms for such an approach; othersinclude sustainability appraisal (OECD/DAC 2004) and sustainability impact assessment (George andKirkpatrick 2003).Currently, there is particular debate about the extent to which SEA should move towards an integrative approach andconsider economic and social as well as environmental considerations. Such an approach is widely promoted, notably by theInternational Association for Impact Assessment (IAIA 2002). It has many potential benefits (e.g. increased acceptance andrelevance to decision makers) but a number of issues remain to be addressed (see Lee 2002) including the marginalizationof the environment when moving from SEA to more integrative approaches (Sheate et al 2001, Sadler 2004). These issuesare discussed later in this chapter.Understanding Policy with Reference to SEAPolicy is the high terrain of decision-making; it lies at the heart of what is strategic about strategic environmental assessmentIn general terms, policy can be expressed as a strategic aim, broad vision, proposed direction, legislative or fiscalcommitment or course of action that a government intends to pursue. As the apex of the decision-making hierarchy, policy istypified as setting the objectives and measures that guide or set a framework for lower tier decisions, for example thepreparation of plans and programmes for a particular sector or area. This is where the maximum opportunity occurs to gainenvironmental leverage on alternatives and options from a SEA perspective (Sadler 1994 Boothroyd 1995, Buckley 1998).

4/ Strategic Environmental Assessment at the Policy LevelPolicy comes in many guises; it may be general or detailed, government-wide or sector-specific, formal or informal,transformational or incremental in character (Bregha et al 1990). From the standpoint of SEA, major policy reforms orlegislative proposals that are environmentally significant will be of most interest. Other types of policy proposals potentiallysubject to SEA are listed in Box 2 and include government expenditure priorities, procurement strategies and ‘standing’arrangements that can have unintended but perverse environmental effects (where policy audit rather than SEA per se maybe the more appropriate approach). Early SEA application is facilitated when these initiatives are taken forward throughformal, consultative processes with options documented in white papers or proposed in draft bills – where there is less scopefor considering alternatives but still opportunity to offset adverse effects (see Elling and Nielsen 1998).Policy is variably defined in SEA guidance. In the UK, for example, it comprises “the Government’s strategic objectivesin a particular area and framework for deciding programmes and projects” (DETR 1998). The Regulations for implementingthe US National Environmental Policy Act (NEPA) differentiate among policy, plans and programmes as strategic actionsBox 2: Types of policy and legal proposals potentially subject to SEA Government proposals and consultative documents that outline new policy directions (e.g. green or whitepaper, draft national strategy) Bills, draft regulations or proposed rules (e.g. relating to private or common pro

viii / Strategic Environmental Assessment at the Policy Level Preface The Protocol on Strategic Environmental Assessment (Protocol on SEA) was adopted by the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context (the 'Espoo Convention')1 at their extraordinary meeting in Kiev (Ukraine) on 21 May 2003.