by Professor Teresa Parejo Navaja, Universidad Carlos III de Madrid
Royal Legislative Decree number 1/2008, of 11th January, adopting the revised text of the Impact Assessment of projects Law (RTIAL) gathers, in one single act, for the sake of the principle of legal certainty (though the RTIAL has already been amended by Law 6/2010, of 24th of March) all the rules in force (in particular, the ones that transposed the EU Directives and their amendments) regarding the Impact Assessment of projects subject (without including, hence, the Environmental Assessment of Plans and Programs, regulated by Laws 9/2008, of 28th of April).
According to article 1.3 of the RTIAL, the Environmental Impact Assessment (EIA) will aim to identify, describe and evaluate in a proper manner, on a case-by-case basis and in conformity with the Law, the direct or indirect effects of a project on the following factors: a) the human being, the fauna and the flora; b) the land, the water, the air, the climate and the landscape; c) the material assets and the cultural Heritage; and d) the interaction among the aforementioned factors. For that reason, the projects that would have to undergo an EIA, should include an Environmental Impact Study (EIS), that would contain, at least, the following data (art. 7.1):
a) A general description of the project and the future demands regarding the use of the territory and other natural resources. Estimation of the kinds and amounts of the waste disposal and the matter emissions or the resulting energy.
b) A description of the measures envisaged avoiding, reducing and, if possible, remedying significant adverse effects, the data required to identify and assess the main effects, which the project is likely to have on the environment.
c) An assessment of the likely, direct or indirect, impacts of the project on the population, the flora, the fauna, the territory, the air, the water, the climatic factors, the landscape and the material assets, including the historical, artistic and cultural heritage and the archeological. Also, the interaction among these factors will be taken into account.
d) Measures envisaged for reducing, eliminating or compensating the significant environmental impacts (defined in Annex II of the RTIAL as the ones that provoke, among other effects, a significant increase of the emissions to the atmosphere).
e) An Environmental Supervision Program.
f) A non-technical summary and conclusions of the EIS. If needed, a report on the information or technical difficulties found during the elaboration of the Study.
Thus, even though the statute does not expressly use the term “climate change” to identify the kind of environmental impact that a project could provoke once executed, the actual context of general concern regarding the effects of this global phenomenon that exhibit the need of a substantial rethinking of the existing development model, makes it impossible to understand the rule without including in the object of the EIA the effects derived from climate change.
Indeed, the EIA must identify and evaluate the possible effects, direct or indirect, of a project on, among others, the climatic factors as well as on the interaction of these with the elements of nature, including the landscape, the material assets and the cultural Heritage. On top of that, the EIA must foresee the necessary measures to decrease or eliminate the “significant environmental impacts” of these factors, which will imply, for the case of the atmosphere (the place in which the GHG concentrate), an action against the (important) increase of the emissions due to the construction of the project (Annex II, group 9, letter K.1) or, stated in another way, of the gases that provoke the global warming of the planet Earth that causes the climate change problem. Finally, the effects derived from climate change, although its unpredictable location (it cannot be specifically determined which concrete areas will be affected) and its indeterminate seriousness (it cannot be clearly assured how the climatic events due to the temperature rise will be) are already evident and are provoked by the GEI emissions, as it is almost unanimously defended by the scientific community.
As a conclusion, the EIAs that could be carried out under the RTIAL, and following the European Framework relating to the efficiency in the final use of energy and to the energy services, can and must, as referred above in the present case, take into account “climate change” as a factor for the determination of the effects, either direct or indirect, of a concrete project on the environment, that is, as an environmental impact factor.
