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Ukraine moves to comply with its Energy Community obligations by adopting environmental impact assessment bill

May 2017 – As part of its commitment under the Treaty establishing the Energy Community, on 23 May 2017 Ukraine’s parliament adopted an environmental impact assessment bill aimed at harmonising Ukrainian legislation with the applicable EU standards.

The current version of the bill takes into account the proposals of President Petro Poroshenko, who in October 2016 vetoed the previous draft, together with the bill on strategic environmental assessment, in response to criticisms that both lacked legal certainty. The president’s proposals included, in particular:

  • to take into consideration the peculiarities of certain types of economic activities aimed at satisfying the needs of national security and defence, the activities carried out within the Chernobyl exclusion zone, and the need for the immediate implementation of large-scale infrastructure projects;
  • to consider the risk of additional barriers for doing business resulting in unjustified financial and other losses incurred by business due to the inaccurate wording of the bill;
  • to mitigate any non-compliance with Ukraine’s law “On the authorisation system of economic activity” in order to reduce the level of state intervention in economic activity;
  • to eliminate the number of potential areas for corruption (e.g., due to the lack of an exhaustive list of grounds for refusal to issue an environmental impact assessment decision) etc.

In line with EU Environmental Impact Assessment Directive (No. 2011/92/EU), the bill designates two groups of activities and objects that are subject to the environmental assessment. The first group includes oil and gas production in the continental shelf, certain oil and gas transmission pipelines, oil-processing plants (with the exception of crude-oil refineries manufacturing only lubricants from crude oil), thermal power stations, nuclear power stations and other nuclear reactors, installations designed for the production or enrichment of nuclear fuel, certain transport infrastructure projects, waste management facilities etc. The second includes agriculture, silviculture and aquaculture, the food industry, and certain infrastructure and extraction industry projects, gas transmission and storage etc.

In cases of construction, reconstruction, re-equipment, extension, conversion or liquidation of these activities and objects, an environmental impact assessment is mandatory. In addition, the activities and objects from the first group must be considered to define whether they have a trans-boundary impact and whether a trans-boundary impact assessment is required.

The bill becomes effective once it is signed by the president and promulgated. It provides for a six-month transition period.

Parliament’s adoption of this bill comes after its previous delay in doing so and failure to remedy breach of a number of international commitments (including the Ukraine-European Union Association Agreement, the Treaty establishing the Energy Community, the Espoo Convention and Aarhus Convention). It triggered the Energy Community Secretariat to submit a request to the Ministerial Council seeking its decision on Ukraine’s failure to comply with the Energy Community’s rules on environmental impact assessment.

Draft legislation for strategic environmental assessments, which is aimed at implementing EU Directive 2001/42/EC and the Protocol on strategic environmental assessment to the Espoo Convention, has been preliminarily approved and is currently pending its second reading in parliament. We are following this bill and will provide an update of its further development.

For more information, contact Olena Kuchynska, Counsel, at

e-mail

, or Mariana Antonovych, Associate, .